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413 U.S.

49
93 S.Ct. 2628
37 L.Ed.2d 446

PARIS ADULT THEATRE I et al., Petitioners,


v.
Lewis R. SLATON, District Attorney, Atlanta Judicial Circuit,
et al.
No. 711051.
Argued Oct. 19, 1972.
Decided June 21, 1973.
Rehearing Denied Oct. 9, 1973.

See 414 U.S. 881, 94 S.Ct. 27.


Syllabus
Respondents sued under Georgia civil law to enjoin the exhibiting by
petitioners of two allegedly obscene films. There was no prior restraint. In
a jury-waived trial, the trial court (which did not require 'expert'
affirmative evidence of obscenity) viewed the films and thereafter
dismissed the complaints on the ground that the display of the films in
commercial theaters to consenting adult audiences (reasonable precautions
having been taken to exclude minors) was 'constitutionally permissible.'
The Georgia Supreme Court reversed, holding that the films constituted
'hard core' pornography not within the protection of the First Amendment.
Held:
1. Obscene material is not speech entitled to First Amendment protection.
Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; Roth v.
United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. P. 54.
2. The Georgia civil procedure followed here (assuming use of a
constitutionally acceptable standard for determining what is unprotected
by the First Amendment) comported with the standards of Teitel Film
Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966; Freedman
v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649; and Kingsley
Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469. Pp.

5455.
3. It was not error to fail to require expert affirmative evidence of the
film's obscenity, since the films (which were the best evidence of what
they depicted) were themselves placed in evidence. P. 56.
4. States have a legitimate interest in regulating commerce in obscene
material and its exhibition in places of public accommodation, including
'adult' theaters. Pp. 5769.
(a) There is a proper state concern with safeguarding against crime and the
other arguably ill effects of obscenity by prohibiting the public or
commercial exhibition of obscene material. Though conclusive proof is
lacking, the States may reasonably determine that a nexus does or might
exist between antisocial behavior and obscene material, just as States have
acted on unprovable assumptions in other areas of public control. Pp. 57
63.
(b) Though States are free to adopt a laissez-faire policy toward
commercialized obscenity, they are not constitutionally obliged to do so.
P. 64.
(c) Exhibition of obscene material in places of public accommodation is
not protected by any constitutional doctrine of privacy. A commercial
theater cannot be equated with a private home; nor is there here a privacy
right arising from a special relationship, such as marriage. Stanley v.
Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542; Griswold v.
Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, distinguished.
Nor can the privacy of the home be equated with a 'zone' of 'privacy' that
follows a consumer of obscene materials wherever he goes. United States
v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513; United States v. 12
200-Foot Reels of Super 8mm., 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d
500. Pp. 6567.
(d) Preventing the unlimited display of obscene material is not thought
control. Pp. 6768.
(e) Not all conduct directly involving 'consenting adults' only has a claim
to constitutional protection. Pp. 6869.
5. The Georgia obscenity laws involved herein should now be reevaluated in the light of the First Amendment standards newly enunciated
by the Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37
L.Ed.2d 419. Pp. 6970.

228 Ga. 343, 185 S.E.2d 768, vacated and remanded.


Robert Eugene Smith, Atlanta, Ga., for petitioners.
Thomas E. Moran, Atlanta, Ga., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.

Petitioners are two Atlanta, Georgia, movie theaters and their owners and
managers, operating in the style of 'adult' theaters. On December 28, 1970,
respondents, the local state district attorney and the solicitor for the local state
trial court, filed civil complaints in that court alleging that petitioners were
exhibiting to the public for paid admission two allegedly obscene films,
contrary to Georgia Code Ann. 26 2101. 1 The two films in question, 'Magic
Mirror' and 'It All Comes Out in the End,' depict sexual conduct characterized
by the Georgia Supreme Court as 'hard core pornography' leaving 'little to the
imagination.'

Respondents' complaints, made on behalf of the State of Georgia, demanded


that the two films be declared obscene and that petitioners be enjoined from
exhibiting the films. The exhibition of the films was not enjoined, but a
temporary injunction was granted ex parte by the local trial court, restraining
petitioners from destroying the films or removing them from the jurisdiction.
Petitioners were further ordered to have one print each of the films in court on
January 13, 1971, together with the proper viewing equipment.

On January 13, 1971, 15 days after the proceedings began, the films were
produced by petitioners at a jury-waived trial. Certain photographs, also
produced at trial, were stipulated to portray the single entrance to both Paris
Adult Theatre I and Paris Adult Theatre II as it appeared at the time of the
complaints. These photographs show a conventional, inoffensive theater
entrance, without any pictures, but with signs indicating that the theaters exhibit
'Atlanta's Finest Mature Feature Films.' On the door itself is a sign saying:
'Adult TheatreYou must be 21 and able to prove it. If viewing the nude body
offends you, Please Do Not Enter.'

The two films were exhibited to the trial court. The only other state evidence
was testimony by criminal investigators that they had paid admission to see the
films and that nothing on the outside of the theater indicated the full nature of
what was shown. In particular, nothing indicated that the films depictedas as
they didscenes of simulated fellatio, cunnilingus, and group sex intercourse.

There was no evidence presented that minors had ever entered the theaters. Nor
was there evidence presented that petitioners had a systematic policy of barring
minors, apart from posting signs at the entrance. On April 12, 1971, the trial
judge dismissed respondents' complaints. He assumed 'that obscenity is
established,' but stated:
5

'It appears to the Court that the display of these films in a commercial theatre,
when surrounded by requisite notice to the public of their nature and by
reasonable protection against the exposure of these films to minors, is
constitutionally permissible.'

On appeal, the Georgia Supreme Court unanimously reversed. 228 Ga. 343,
185 S.E.2d 768. It assumed that the adult theaters in question barred minors and
gave a full warning to the general public of the nature of the films shown, but
held that the films were without protection under the First Amendment. Citing
the opinion of this Court in United States v. Reidel, 402 U.S. 351, 91 S.Ct.
1410, 28 L.Ed.2d 813 (1971), the Georgia court stated that 'the sale and
delivery of obscene material to willing adults is not protected under the first
amendment.' The Georgia court also held Stanley v. Georgia, 394 U.S. 557, 89
S.Ct. 1243, 22 L.Ed.2d 542 (1969), to be inapposite since it did not deal with
'the commercial distribution of pornography, but with the right of Stanley to
possess, in the privacy of his home, pornographic films.' 228 Ga. 343, 345, 185
S.E.2d 768, 769 (1971). After viewing the films, the Georgia Supreme Court
held that their exhibition should have been enjoined, stating:

'The films in this case leave little to the imagination. It is plain what they
purport to depict, that is, conduct of the most salacious character. We hold that
these films are also hard core pornography, and the showing of such films
should have been enjoined since their exhibition is not protected by the first
amendment.' Id., at 347, 185 S.E.2d, at 770.

* It should be clear from the outset that we do not undertake to tell the States
what they must do, but rather to define the area in which they may chart their
own course in dealing with obscene material. This Court has consistently held
that obscene material is not protected by the First Amendment as a limitation on
the state police power by virtue of the Fourteenth Amendment. Miller v.
California, 413 U.S. 15, at 2325, 93 S.Ct. 2607, at 26142615, 37 L.Ed.2d
419; Kois v. Wisconsin, 408 U.S. 229, 230, 92 S.Ct. 2245, 2246, 33 L.Ed.2d
312 (1972); United States v. Reidel, supra, 402 U.S., at 354, 91 S.Ct., at 1411;
354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957).

Georgia case law permits a civil injunction of the exhibition of obscene

Georgia case law permits a civil injunction of the exhibition of obscene


materials. See 1024 Peachtree Corp. v. Slaton, 228 Ga. 102, 184 S.E.2d 144
(1971); Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971); Evans Theatre
Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971). While this procedure is
civil in nature, and does not directly involve the state criminal statute
proscribing exhibition of obscene material,2 the Georgia case law permitting
civil injunction does adopt the definition of 'obscene materials' used by the
criminal statute.3 Today, in Miller v. California, supra, we have sought to
clarify the constitutional definition of obscene material subject to regulation by
the States, and we vacate and remand this case for reconsideration in light of
Miller.

10

This is not to be read as disapproval of the Georgia civil procedure employed in


this case, assuming the use of a constitutionally acceptable standard for
determining what is unprotected by the First Amendment. On the contrary, such
a procedure provides an exhibitor or purveyor of materials the best possible
notice, prior to any criminal indictments, as to whether the materials are
unprotected by the First Amendment and subject to state regulation.4 See
Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441444, 77 S.Ct. 1325, 1327
1330, 1 L.Ed.2d 1469 (1957). Here, Georgia imposed no restraint on the
exhibition of the films involved in this case until after a full adversary
proceeding and a final judicial determination by the Georgia Supreme Court
that the materials were constitutionally unprotected.5 Thus the standards of
Blount v. Rizzi, 400 U.S. 410, 417, 91 S.Ct. 423, 428, 27 L.Ed.2d 498 (1971);
Teitel Film Corp. v. Cusack, 390 U.S. 139, 141142, 88 S.Ct. 754, 755756,
19 L.Ed.2d 966 (1968); Freedman v. Maryland, 380 U.S. 51, 5859, 85 S.Ct.
734, 738739, 13 L.Ed.2d 649 (1965), and Kingsley Books, Inc. v. Brown,
supra, 354 U.S., at 443445, 77 S.Ct., at 13281330, were met. Cf. United
States v. Thirty-Seven Photographs 402 U.S. 363, 367369, 91 S.Ct. 1400,
14031405, 28 L.Ed.2d 822 (1971) (opinion of White, J.).

11

Nor was it error to fail to require 'expert' affirmative evidence that the materials
were obscene when the materials themselves were actually placed in evidence.
United States v. Groner, 479 F.2d 577, 579586 (CA5 1973); id., at 586588
(Ainsworth, J., concurring); id., at 588589 (Clark, J., concurring); United
States v. Wild, 422 F.2d 34, 3536 (C.A.2 1969), cert. denied, 402 U.S. 986,
91 S.Ct. 1644, 29 L.Ed.2d 152 (1971); Kahn v. United States, 300 F.2d 78, 84
(C.A.5), cert. denied, 369 U.S. 859, 82 S.Ct. 949, 8 L.Ed.2d 18 (1962); State v.
Amato, 49 Wis.2d 638, 645, 183 N.W.2d 29, 32 (1971), cert. denied sub nom.
Amato v. Wisconsin, 404 U.S. 1063, 92 S.Ct. 735, 30 L.Ed.2d 751 (1972). See
Smith v. California, 361 U.S. 147, 172, 80 S.Ct. 215, 228, 4 L.Ed.2d 205
(1959) (Harland, J., concurring and dissenting); United States v. Brown, 328
F.Supp. 196, 199 (E.D.Va.1971). The films, obviously, are the best evidence of

what they represent.6 'In the cases in which this Court has decided obscenity
questions since Roth, it has regarded the materials as sufficient in themselves
for the determination of the question.' Ginzburg v. United States, 383 U.S. 463,
465, 86 S.Ct. 942, 944, 16 L.Ed.2d 31 (1966).
II
12

We categorically disapprove the theory, apparently adopted by the trial judge,


that obscene, pornographic films acquire constitutional immunity from state
regulation simply because they are exhibited for consenting adults only. This
holding was properly rejected by the Georgia Supreme Court. Although we
have often pointedly recognized the high importance of the state interest in
regulating the exposure of obscene materials to juveniles and unconsenting
adults, see Miller v. California, supra, 413 U.S., at 1820, 93 S.Ct., at 2612
2613; Stanley v. Georgia, 394 U.S., at 567, 89 S.Ct., at 1249; Redrup v. New
York, 386 U.S. 767, 769, 87 S.Ct. 1414, 1415, 18 L.Ed.2d 515 (1967), this
Court has never declared these to be the only legitimate state interests
permitting regulation of obscene material. The States have a long-recognized
legitimate interest in regulating the use of obscene material in local commerce
and in all places of public accommodation, as long as these regulations do not
run afoul of specific constitutional prohibitions. See United States v. ThirtySeven Photographs, supra, 402 U.S., at 376377, 91 S.Ct., at 14081409
(opinion of White, J.); United States v. Reidel, 402 U.S., at 354356, 91 S.Ct.,
at 14111413. Cf. United States v. Thirty-Seven Photographs, supra, 402
U.S., at 378, 91 S.Ct., at 1409 (Stewart, J., concurring). 'In an unbroken series
of cases extending over a long stretch of this Court's history it has been
accepted as a postulate that 'the primay requirements of decency may be
enforced against obscene publications.' (Near v. Minnesota ex rel. Olson, 283
U.S. 697, 716, 51 S.Ct. 625, 631, 15 L.Ed. 1357 (1931)).' Kingsley Books, Inc.
v. Brown, supra, 354 U.S., at 440, 77 S.Ct., at 1327.

13

In particular, we hold that there are legitimate state interests at stake in


stemming the tide of commercialized obscenity, even assuming it is feasible to
enforce effective safeguards against exposure to juveniles and to passersby.7
Rights and interests 'other than those of the advocates are involved.' Breard v.
Alexandria, 341 U.S. 622, 642, 71 S.Ct. 920, 932, 95 L.Ed. 1233 (1951). These
include the interest of the public in the quality of life and the total community
environment, the tone of commerce in the great city centers, and, possibly, the
public safety itself. The Hill-Link Minority Report of the Commission on
Obscenity and Pornography indicates that there is at least an arguable
correlation between obscene material and crime.8 Quite apart from sex crimes,
however, there remains one problem of large proportions aptly described by

Professor Bickel:
14

'It concerns the tone of the society, the mode, or to use terms that have perhaps
greater currency, the style and quality of life, now and in the future. A man may
be entitled to read an obscene book in his room, or expose himself indecently
there . . .. We should protect his privacy. But if he demands a right to obtain the
books and pictures he wants in the market, and to foregather in public places
discreet, if you will, but accessible to allwith others who share his tastes,
then to grant him his right is to affect the world about the rest of us, and to
impinge on other privacies. Even supposing that each of us can, if he wishes,
effectively avert the eye and stop the ear (which, in truth, we cannot), what is
commonly read and seen and heard and done intrudes upon us all, want it or
not.' 22 The Public Interest 2526 (Winter 1971).9 (Emphasis added.)

15

As Mr. Chief Justice Warren stated, there is a 'right of the Nation and of the
States to maintain a decent society . . .,' Jacobellis v. Ohio, 378 U.S. 184, 199,
84 S.Ct. 1676, 1684, 12 L.Ed.2d 793 (1964) (dissenting opinion).10 See
Memoirs v. Massachusetts, 383 U.S. 413, 457, 86 S.Ct. 975, 996, 16 L.Ed.2d 1
(1966) (Harlan, J., dissenting); Beauharnais v. Illinois, 343 U.S. 250, 256
257, 72 S.Ct. 725, 730731, 96 L.Ed. 919 (1952); Kovacs v. Cooper, 336 U.S.
77, 8688, 69 S.Ct. 448, 453454, 93 L.Ed. 513 (1949).

16

But, it is argued, there are no scientific data which conclusively demonstrate


that exposure to obscene material adversely affects men and women or their
society. It is urged on behalf of the petitioners that, absent such a
demonstration, and kind of state regulation is 'impermissible.' We reject this
argument. It is not for us to resolve empirical uncertainties underlying state
legislation, save in the exceptional case where that legislation plainly impinges
upon rights protected by the Constitution itself.11 Mr. Justice Brennan, speaking
for the Court in Ginsberg v. New York, 390 U.S. 629, 642643, 88 S.Ct.
1274, 1282, 20 L.Ed.2d 195 (1968), said: 'We do not demand of legislatures
'scientifically certain criteria of legislation.' Noble State Bank v. Haskell, 219
U.S. 104, 110 (31 S.Ct. 186, 187) 55 L.Ed. 112.' Although there is no
conclusive proof of a connection between antisocial behavior and obscene
material, the legislature of Georgia could quite reasonably determine that such
a connection does or might exist. In deciding Roth, this Court implicitly
accepted that a legislature could legitimately act on such a conclusion to protect
'the social interest in order and morality.' Roth v. United States, 354 U.S., at
485, 77 S.Ct., at 1309, quoting Chaplinsky v. New Hampshire, 315 U.S. 568,
572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942) (emphasis added in Roth).12

17

From the beginning of civilized societies, legislators and judges have acted on

various unprovable assumptions. Such assumptions underlie much lawful state


regulation of commercial and business affairs. See Ferguson v. Skrupa, 372
U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963); Breard v.
Alexandria, 341 U.S., at 632633, 641645, 71 S.Ct., at 927928, 932
934; Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S.
525, 536537, 69 S.Ct. 251, 257, 93 L.Ed. 212 (1949). The same is true of the
federal securities and antitrust laws and a host of federal regulations. See SEC
v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 186195, 84 S.Ct. 275,
279285, 11 L.Ed.2d 237 (1963); American Power & Light Co. v. SEC, 329
U.S. 90, 99103, 67 S.Ct. 133, 139141, 91 L.Ed. 103 (1946); North
American Co. v. SEC, 327 U.S. 686, 705707, 66 S.Ct. 785, 796797, 90
L.Ed. 945 (1946), and cases cited. See also Brooks v. United States, 267 U.S.
432, 436437, 45 S.Ct. 345, 346, 69 L.Ed. 699 (1925), and Hoke v. United
States, 227 U.S. 308, 322, 33 S.Ct. 281, 283, 57 L.Ed. 523 (1913). On the basis
of these assumptions both Congress and state legislatures have, for example,
drastically restricted associational rights by adopting antitrust laws, and have
strictly regulated public expression by issuers of and dealers in securities, profit
sharing 'coupons,' and 'trading stamps,' commanding what they must and must
not publish and announce. See Sugar Institute, Inc. v. United States, 297 U.S.
553, 597602, 56 S.Ct. 629, 641644, 80 L.Ed. 859 (1936); Merrick v. N.
W. Halsey & Co., 242 U.S. 568, 584589, 37 S.Ct. 227, 230232, 61 L.Ed.
498 (1917); Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559, 567 568,
37 S.Ct. 224, 226227, 61 L.Ed. 493 (1917); Hall v. Geiger-Jones Co., 242
U.S. 539, 548552, 37 S.Ct. 217, 220221, 61 L.Ed. 480 (1917); Tanner v.
Little, 240 U.S. 369, 383386, 36 S.Ct. 379, 383385, 60 L.Ed. 691 (1916);
Rast v. Van Deman & Lewis Co., 240 U.S. 342, 363368, 36 S.Ct. 370, 376
379, 60 L.Ed. 679 (1916). Understandably those who entertain an absolutist
view of the First Amendment find it uncomfortable to explain why rights of
association, speech, and press should be severely restrained in the marketplace
of goods and money, but not in the marketplace of pornography.
18

Likewise, when legislatures and administrators act to protect the physical


environment from pollution and to preserve our resources of forests, streams,
and parks, they must act on such imponderables as the impact of a new
highway near or through an existing park or wilderness area. See Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 417420, 91 S.Ct. 814,
824826, 28 L.Ed.2d 136 (1971). Thus, 18(a) of the Federal-Aid Highway
Act of 1968, 23 U.S.C. 138, and the Department of Transportation Act of
1966, as amended, 82 Stat. 824, 49 U.S.C. 1653(f), have been described by
Mr. Justice Black as 'a solemn determination of the highest law-making body of
this Nation that the beauty and health-giving facilities of our parks are not to be
taken away for public roads without hearings, fact-findings, and policy

determinations under the supervision of a Cabinet officer . . ..' Citizens to


Preserve Overton Park, supra, 401 U.S., at 421, 91 S.Ct., at 826 (separate
opinion joined by Brennan, J.). The fact that a congressional directive reflects
unprovable assumptions about what is good for the people, including
imponderable aesthetic assumptions, is not a sufficient reason to find that
statute unconstitutional.
19

If we accept the unprovable assumption that a complete education requires the


reading of certain books, see Board of Education v. Allen, 392 U.S. 236, 245,
88 S.Ct. 1923, 1927, 20 L.Ed.2d 1060 (1968), and Johnson v. New York State
Education Dept., 449 F.2d 871, 882883 (CA2 1971) (dissenting opinion),
vacated and remanded to consider mootness, 409 U.S. 75, 93 S.Ct. 259, 34
L.Ed.2d 290 (1972), id., at 7677, 93 S.Ct., at 259260 (Marshall, J.,
concurring), and the well nigh universal belief that good books, plays, and art
lift the spirit, improve the mind, enrich the human personality, and develop
character, can we then say that a state legislature may not act on the corollary
assumption that commerce in obscene books, or public exhibitions focused on
obscene conduct, have a tendency to exert a corrupting and debasing impact
leading to antisocial behavior? 'Many of these effects may be intangible and
indistinct, but they are nonetheless real.' American Power & Light Co. v. SEC,
supra, 329 U.S., at 103, 67 S.Ct., at 141. Mr. Justice Cardozo said that all laws
in Western civilization are 'guided by a robust common sense . . ..' Steward
Machine Co. v. Davis, 301 U.S. 548, 590, 57 S.Ct. 883, 892, 81 L.Ed. 1279
(1937). The sum of experience, including that of the past two decades, affords
an ample basis for legislatures to conclude that a sensitive, key relationship of
human existence, central to family life, community welfare, and the
development of human personality, can be debased and distorted by crass
commercial exploitation of sex. Nothing in the Constitution prohibits a State
from reaching such a conclusion and acting on it legislatively simply because
there is no conclusive evidence or empirical data.

20

It is argued that individual 'free will' must govern, even in activities beyond the
protection of the First Amendment and other constitutional guarantees of
privacy, and that government cannot legitimately impede an individual's desire
to see or acquire obscene plays, movies, and books. We do indeed base our
society on certain assumptions that people have the capacity for free choice.
Most exercises of individual free choicethose in politics, religion, and
expression of ideasare explicitly protected by the Constitution. Totally
unlimited play for free will, however, is not allowed in our or any other society.
We have just noted, for example, that neither the First Amendment nor 'free
will' precludes States from having 'blue sky' laws to regulate what sellers of
securities may write or publish about their wares. See supra, at 6162. Such

laws are to protect the weak, the uninformed, the unsuspecting, and the gullible
from the exercise of their own volition. Nor do modern societies leave disposal
of garbage and sewage up to the individual 'free will,' but impose regulation to
protect both public health and the appearance of public places. States are told
by some that they must await a 'laissez-faire' market solution to the obscenitypornography problem, paradoxically 'by people who have never otherwise had
a kind word to say for laissez-faire,' particularly in solving urban, commercial,
and environmental pollution problems. See I. Kristol, On the Democratic Idea
in America 37 (1972).
21

The States, of course, may follow such a 'laissez-faire' policy and drop all
controls on commercialized obscenity, if that is what they prefer, just as they
can ignore consumer protection in the marketplace, but nothing in the
Constitution compels the States to do so with regard to matters falling within
state jurisdiction. See United States v. Reidel, 402 U.S., at 357, 91 S.Ct., at
1413; Memoirs v. Massachusetts, 383 U.S., at 462, 86 S.Ct., at 999 (White, J.,
dissenting). 'We do not sit as a superlegislature to determine the wisdom, need,
and propriety of laws that touch economic problems, business affairs, or social
conditions.' Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 1680,
14 L.Ed.2d 510 (1965). See Ferguson v. Skrupa, 372 U.S., at 731, 83 S.Ct., at
1031; Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423, 72 S.Ct. 405,
407, 96 L.Ed. 469 (1952).

22

It is asserted, however, that standards for evaluating state commercial


regulations are inapposite in the present context, as state regulation of access by
consenting adults to obscene material violates the constitutionally protected
right to privacy enjoyed by petitioners' customers. Even assuming that
petitioners have vicarious standing to assert potential customers' rights, it is
unavailing to compare a theater, open to the public for a fee, with the private
home of Stanley v. Georgia, 394 U.S., at 568, 89 S.Ct., at 1249, and the marital
bedroom of Griswold v. Connecticut, supra, 381 U.S., at 485486, 85 S.Ct., at
16821683. This Court, has, on numerous occasions, refused to hold that
commercial ventures such as a motion-picture house are 'private' for the
purpose of civil rights litigation and civil rights statutes. See Sillivan v. Little
Hunting Park, Inc., 396 U.S. 229, 236, 90 S.Ct. 400, 404, 24 L.Ed.2d 386
(1969); Daniel v. Paul, 395 U.S. 298, 305308, 89 S.Ct. 1697, 17011703,
23 L.Ed.2d 318 (1969); Blow v. North Carolina, 379 U.S. 684, 685686, 85
S.Ct. 635, 636, 13 L.Ed.2d 603 (1965); Hamm v. Rock Hill, 379 U.S. 306, 307
308, 85 S.Ct. 384, 387388, 13 L.Ed.2d 300 (1964); Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241, 247, 260261, 85 S.Ct. 348, 352,
359360, 13 L.Ed.2d 258 (1964). The Civil Rights Act of 1964 specifically
defines motion-picture houses and theaters as places of 'public accommodation'

covered by the Act as operations affecting commerce. 78 Stat. 243, 42 U.S.C.


2000a(b) (3), (c).
23

Our prior decisions recognizing a right to privacy guaranteed by the Fourteenth


Amendment included 'only personal rights that can be deemed 'fundamental' or
'implicit in the concept of ordered liberty.' Palko v. Connecticut, 302 U.S. 319,
325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937).' Roe v. Wade, 410 U.S. 113, 152,
93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). This privacy right encompasses and
protects the personal intimacies of the home, the family, marriage, motherhood,
procreation, and child rearing. Cf. Eisenstadt v. Baird, 405 U.S. 438, 453454,
92 S.Ct. 1029, 1038 1039, 31 L.Ed.2d 349 (1972); id., at 460, 463465, 92
S.Ct., at 1042, 10431044 (White, J., concurring); Stanley v. Georgia, supra,
394 U.S., at 568, 89 S.Ct., at 1249; Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct.,
1817, 1823, 18 L.Ed.2d 1010 (1967); Griswold v. Connecticut, supra, 381 U.S.,
at 486, 85 S.Ct., at 1682; Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct.
438, 442, 88 L.Ed. 645 (1944); Skinner v. Oklahoma ex rel. Williamson, 316
U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942); Pierce v. Society of
Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925); Meyer v.
Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923).
Nothing, however, in this Court's decisions intimates that there is any
'fundamental' privacy right 'implicit in the concept of ordered liberty' to watch
obscene movies in places of public accommodation.

24

If obscene material unprotected by the First Amendment in itself carried with it


a 'penumbra' of constitutionally protected privacy, this Court would not have
found it necessary to decide Stanley on the narrow basis of the 'privacy of the
home,' which was hardly more than a reaffirmation that 'a man's home is his
castle.' Cf. Stanley v. Georgia, supra, 394 U.S., at 564, 89 S.Ct., at 1247.13
Moreover, we have declined to equate the privacy of the home relied on in
Stanley with a 'zone' of 'privacy' that follows a distributor or a consumer of
obscene materials whatever he goes. See United States v. Orito, 413 U.S. 139,
at 141143, 93 S.Ct. 2674, at 26762678, 37 L.Ed.2d 513; United States v.
Twelve 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, at 126129, 93
S.Ct. 2665, at 26672669, 37 L.Ed.2d 500; United States v. Thirty-Seven
Photographs, 402 U.S., at 376377, 91 S.Ct., at 1408 1409 (opinion of White,
J.); United States v. Reidel, supra, 402 U.S., at 355, 91 S.Ct., at 1412. The idea
of a 'privacy' right and a place of public accommodation are, in this context,
mutually exclusive. Conduct or depictions of conduct that the state police
power can prohibit on a public street do not become automatically protected by
the Constitution merely because the conduct is moved to a bar or a 'live' theater
stage, any more than a 'live' performance of a man and woman locked in a
sexual embrace at high noon in Times Square is protected by the Constitution

because they simultaneously engage in a valid political dialogue.


25

It is also argued that the State has no legitimate interest in 'control (of) the
moral content of a person's thoughts,' Stanley v. Georgia, supra, 394 U.S., at
565, 89 S.Ct., at 1248 and we need not quarrel with this. But we reject the
claim that the State of Georgia is here attempting to control the minds or
thoughts of those who patronize theaters. Preventing unlimited display or
distribution of obscene material, which by definition lacks any serious literary,
artistic, political, or scientific value as communication, Miller v. California,
supra, 413 U.S., at 24, 34, 93 S.Ct., at 2615, 2620, is distinct from a control of
reason and the intellect. Cf. Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33
L.Ed.2d 312 (1972); Roth v. United States, supra, 354 U.S., at 485487, 77
S.Ct., at 13091310; Thornhill v. Alabama, 310 U.S. 88, 101102, 60 S.Ct.
736, 743744, 84 L.Ed. 1093 (1940); Finnis, 'Reason and Passion': The
Constitutional Dialectic of Free Speech and Obscenity, 116 U.Pa.L.Rev. 222,
229 230, 241243 (1967). Where communication of ideas, protected by the
First Amendment, is not involved, or the particular privacy of the home
protected by Stanley, or any of the other 'areas or zones' of constitutionally
protected privacy, the mere fact that, as a consequence, some human
'utterances' or 'thoughts' may be incidentally affected does not bar the State
from acting to protect legitimate state interests. Cf. Roth v. United States, supra,
354 U.S., at 483, 485487, 77 S.Ct., at 1308, 13091310; Beauharnais v.
Illinois, 343 U.S., at 256257, 72 S.Ct., at 730 731. The fantasies of a drug
addict are his own and beyond the reach of government, but government
regulation of drug sales is not prohibited by the Constitution. Cf. United States
v. Reidel, supra, 402 U.S., at 359360, 91 S.Ct., at 1414 (Harlan, J.,
concurring).

26

Finally, petitioners argue that conduct which directly involves 'consenting


adults' only has, for that sole reason, a special claim to constitutional protection.
Our Constitution establishes a broad range of conditions on the exercise of
power by the States, but for us to say that our Constitution incorporates the
proposition that conduct involving consenting adults only is always beyond
state regulation,14 is a step we are unable to take. 15 Commercial exploitation of
depictions, descriptions, or exhibitions of obscene conduct on commercial
premises open to the adult public falls within a State's broad power to regulate
commerce and protect the public environment. The issue in this context goes
beyond whether someone, or even the majority, considers the conduct depicted
as 'wrong' or 'sinful.' The States have the power to make a morally neutral
judgment that public exhibition of obscene material, or commerce in such
material, has a tendency to injure the community as a whole, to endanger the
public safety, or to jeopardize in Mr. Chief Justice Warren's words, the States'

'right . . . to maintain a decent society.' Jacobellis v. Ohio, 378 U.S., at 199, 84


S.Ct., at 1684 (dissenting opinion).
27

To summarize, we have today reaffirmed the basic holding of Roth v. United


States, supra, that obscene material has no protection under the First
Amendment. See Miller v. California, supra, and Kaplan v. California, 413 U.S.
115, 93 S.Ct. 2680, 37 L.Ed.2d 492. We have directed our holdings, not at
thoughts or speech, but at depiction and description of specifically defined
sexual conduct that States may regulate within limits designed to prevent
infringement of First Amendment rights. We have also reaffirmed the holdings
of United States v. Reidel, supra, and United States v. Thirty-Seven
Photographs, supra, that commerce in obscene material is unprotected by any
constitutional doctrine of privacy. United States v. Orito, supra, 413 U.S., at
141143, 93 S.Ct., at 26762678; United States v. Twelve 200-Foot Reels of
Super 8 mm. Film, 413 U.S., at 126129, 93 S.Ct., at 26682669. In this case
we hold that the States have a legitimate interest in regulating commerce in
obscene material and in regulating exhibition of obscene material in places of
public accommodation, incloding so-called 'adult' theaters from which minors
are excluded. In light of these holdings, nothing precludes the State of Georgia
from the regulation of the allegedly obscene material exhibited in Paris Adult
Theatre I or II, provided that the applicable Georgia law, as written or
authoritatively interpreted by the Georgia courts, meets the First Amendment
standards set forth in Miller v. California, supra, 413 U.S., at 2325, 93 S.Ct.,
at 26142616. The judgment is vacated and the case remanded to the Georgia
Supreme Court for further proceedings not inconsistent with this opinion and
Miller v. California, supra. See United States v. 12 200-Foot Reels of Super 8
mm. Film, 413 U.S., at 130 n. 7, 93 S.Ct., at 2670, n. 7.

Vacated and remanded.


28
29

Mr. Justice DOUGLAS, dissenting.

30

My Brother BRENNAN is to be commended for seeking a new path through


the thicket which the Court entered when it undertook to sustain the
constitutionality of obscenity laws and to place limits on their application. I
have expressed on numerous occasions my disagreement with the basic
decision that held that 'obscenity' was not protected by the First Amendment. I
disagreed also with the definitions that evolved. Art and literature reflect tastes;
and tastes, like musical appreciation, are hardly reducible to precise definitions.
That is one reason I have always felt that 'obscenity' was not an exception to the
First Amendment. For matters of taste, like matters of belief, turn on the
idiosyncrasies of individuals. They are too personal to define and too emotional

and vague to apply, as witness the prison term for Ralph Ginzburg, Ginzburg v.
United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, not for what he
printed but for the sexy manner in which he advertised his creations.
31

The other reason I could not bring myself to conclude that 'obscenity' was not
covered by the First Amendment was that prior to the adoption of our
Constitution and Bill of Rights the Colonies had no law excluding 'obscenity'
from the regime of freedom of expression and press that then existed. I could
find no such laws; and more important, our leading colonial expert, Julius
Goebel, could find none, J. Goebel, Development of Legal Institutions (1946);
J. Goebel, Felony and Misdemeanor (1937). So I became convinced that the
creation of the 'obscenity' exception to the First Amendment was a legislative
and judicial tour de force; that if we were to have such a regime of censorship
and punishment, it should be done by constitutional amendment.

32

People are, of course, offended by many offerings made by merchants in this


area. They are also offended by political pronouncements, sociological themes,
and by stories of official misconduct. The list of activities and publications and
pronouncements that offend someone is endless. Some of it goes on in private;
some of it is inescapably public, as when a government official generates crime,
becomes a blatant offender of the moral sensibilities of the people, engages in
burglary, or breaches the privacy of the telephone, the conference room, or the
home. Life in this crowded modern technological world creates many offensive
statements and many offensive deeds. There is no protection against offensive
ideas, only against offensive conduct.

33

'Obscenity' at most is the expression of offensive ideas. There are regimes in


the world where ideas 'offensive' to the majority (or at least to those who
control the majority) are suppressed. There life proceeds at a monotonous pace.
Most of us would find that world offensive. One of the most offensive
experiences in my life was a visit to a nation where bookstalls were filled only
with books on mathematics and books on religion.

34

I am sure I would find offensive most of the books and movies charged with
being obscene. But in a life that has not been short, I have yet to be trapped into
seeing or reading something that would offend me. I never read or see the
materials coming to the Court under charges of 'obscenity,' because I have
thought the First Amendment made it unconstitutional for me to act as a censor.
I see ads in bookstores and neon lights over theaters that resemble bait for those
who seek vicarious exhilaration. As a parent or a priest or as a teacher I would
have no compunction in edging my children or wards away from the books and
movies that did no more than excite man's base instincts. But I never supposed

that government was permitted to sit in judgment on one's tastes or beliefs


save as they involved action within the reach of the police power of
government.
35

I applaud the effort of my Brother BRENNAN to forsake the low road which
the Court has followed in this field. The new regime he would inaugurate is
much closer than the old to the policy of abstention which the First Amendment
proclaims. But since we do not have here the unique series of problems raised
by government-imposed or government-approved captive audiences, cf. Public
Utilities Comm'n v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068, I see no
constitutional basis for fashioning a rule that makes a publisher, producer,
bookseller, librarian, or movie house operator criminally responsible, when he
fails to take affirmative steps to protect the consumer against literature, books,
or movies offensive* to those who temporarily occupy the seats of the mighty.

36

When man was first in the jungle he took care of himself. When he entered a
societal group, controls were necessarily imposed. But our societyunlike
most in the worldpresupposes that freedom and liberty are in a frame of
reference that makes the individual, not government, the keeper of his tastes,
beliefs, and ideas. That is the philosophy of the First Amendment; and it is the
article of faith that sets us apart from most nations in the world.

37

Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice
MARSHALL join, dissenting.

38

This case requires the Court to confront once again the vexing problem of
reconciling state efforts to suppress sexually oriented expression with the
protections of the First Amendment, as applied to the States through the
Fourteenth Amendment. No other aspect of the First Amendment has, in recent
years, demanded so substantial a commitment of our time, generated such
disharmony of views, and remained so resistant to the formulation of stable and
manageable standards. I am convinced that the approach initiated 16 years ago
in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957),
and culminating in the Court's decision today, cannot bring stability to this area
of the law without jeopardizing fundamental First Amendment values, and I
have concluded that the time has come to make a significant departure from that
approach.

39

In this civil action in the Superior Court of Fulton County, the State of Georgia
sought to enjoin the showing of two motion pictures, It All Comes Out In The
End, and Magic Mirror, at the Paris Adult Theatres (I and II) in Atlanta,

Georgia. The State alleged that the films were obscene under the standards set
forth in Georgia Code Ann. 262101.1 The trial court denied injunctive
relief, holding that even though the films could be considered obscene, their
commercial presentation could not constitutionally be barred in the absence of
proof that they were shown to minors or unconsenting adults. Reversing, the
Supreme Court of Georgia found the films obscene, and held that the care
taken to avoid exposure to minors and unconsenting adults was without
constitutional significance.
40

* The Paris Adult Theatres are two commercial cinemas, linked by a common
box office and lobby, on Peachtree Street in Atlanta, Georgia. On December 28,
1970, investigators employed by the Criminal Court of Fulton County entered
the theaters as paying customers and viewed each of the films which are the
subject of this action. Thereafter, two separate complaints, one for each of the
two films, were filed in the Superior Court seeking a declaration that the films
were obscene and an injunction against their continued presentation to the
public. The complaints alleged that the films were 'a flagrant violation of
Georgia Code Section 262101 in that the sole and dominant theme(s) of the
said motion picture film(s) considered as a whole and applying contemporary
community standards (appeal) to the prurient interest in sex, nudity and
excretion, and that the said motion picture film(s are) utterly and absolutely
without any redeeming social value whatsoever, and (transgress) beyond the
customary limits of candor in describing and discussing sexual matters.' App.
20, 39.

41

Although the language of the complaints roughly tracked the language of 26


2101, which imposes criminal penalties on persons who knowingly distribute
obscene materials,2 this proceeding was not brought pursuant to that statute.
Instead, the State initiated a non-statutory civil proceeding to determine the
obscenity of the films and to enjoin their exhibition. While the parties waived
jury trial and stipulated that the decision of the trial court would be final on the
issue of obscenity, the State has not indicated whether it intends to bring a
criminal action under the statute in the event that it succeeds in proving the
films obscene.

42

Upon the filing of the complaints, the trial court scheduled a hearing for
January 13, 1971, and entered an order temporarily restraining the defendants
from concealing, destroying, altering, or removing the films from the
jurisdiction, but not from exhibiting the films to the public pendente lite. In
addition to viewing the films at the hearing, the trial court heard the testimony
of witnesses and admitted into evidence photographs that were stipulated to
depict accurately the facade of the theater. The witnesses testified that the

exterior of the theater was adorned with prominent signs reading 'Adults Only,'
'You Must Be 21 and Able to Prove It,' and 'If the Nude Body Offends You, Do
Not Enter.' Nothing on the outside of the theater described the films with
specificity. Nor were pictures displayed on the outside of the theater to draw
the attention of passersby to the contents of the films. The admission charge to
the theaters was $3. The trial court heard no evidence that minors had ever
entered the theater, but also heard no evidence that petitioners had enforced a
systematic policy of screening out minors (apart from the posting of the notices
referred to above).
43

On the basis of the evidence submitted, the trial court concluded that the films
could fairly be considered obscene, '(a)ssuming that obscenity is established by
a finding that the actors cavorted about in the nude indiscriminately,' but held,
nonetheless, that 'the display of these films in a commercial theatre, when
surrounded by requisite notice to the public of their nature and by reasonable
protection against the exposure of these films to minors, is constitutionally
permissible.'3 Since the issue did not arise in a statutory proceeding, the trial
court was not required to pass upon the constitutionality of any state statute, on
its face or as applied, in denying the injunction sought by the State.

44

The Supreme Court of Georgia unanimously reversed, reasoning that the lower
court's reliance on Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d
542 (1969), was misplaced in view of our subsequent decision in United States
v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971):

45

'In (Reidel), the Supreme Court expressly held that the government could
constitutionally prohibit the distribution of obscene materials through the
mails, even though the distribution be limited to willing recipients who state
that they are adults, and, further, that the constitutional right of a person to
possess obscene material in the privacy of his own home, as expressed in the
Stanley case, does not carry with it the right to sell and deliver such material. . .
. Those who choose to pass through the front door of the defendant's theater and
purchase a ticket to view the films and who certify thereby that they are more
than 21 years of age are willing recipients of the material in the same legal
sense as were those in the Reidel case, who, after reading the newspaper
advertisements of the material, mailed an order to the defendant accepting his
solicitation to sell them the obscene booklet there. That case clearly establishes
once and for all that the sale and delivery of obscene material to willing adults
is not protected under the first amendment.' 228 Ga. 343, 346, 185 S.E.2d 768,
769770 (1971).

46

The decision of the Georgia Supreme Court rested squarely on its conclusion

that the State could constitutionally suppress these films even if they were
displayed only to persons over the age of 21 who were aware of the nature of
their contents and who had consented to viewing them. For the reasons set forth
in this opinion, I am convinced of the invalidity of that conclusion of law, and I
would therefore vacate the judgment of the Georgia Supreme Court. I have no
occasion to consider the extent of state power to regulate the distribution of
sexually oriented materials to juveniles or to unconsenting adults. Nor am I
required, for the purposes of this review, to consider whether or not these
petitioners had, in fact, taken precautions to avoid exposure of films to minors
or unconsenting adults.
II
47

In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957),
the Court held that obscenity, although expression, falls outside the area of
speech or press constitutionally protected under the First and Fourteenth
Amendments against state or federal infringement. But at the same time we
emphasized in Roth that 'sex and obscenity are not synonymous,' id., at 487, 77
S.Ct., at 1310, and that matter which is sexually oriented but not obscene is
fully protected by the Constitution. For we recognized that '(s)ex, a great and
mysterious motive force in human life, has indisputably been a subject of
absorbing interest to mankind through the ages; it is one of the vital problems
of human interest and public concern.' Ibid.4 Roth rested, in other words, on
what has been termed a two-level approach to the question of obscenity.5 While
much criticized,6 that approach has been endorsed by all but two members of
this Court who have addressed the question since Roth. Yet our efforts to
implement that approach demonstrate that agreement on the existence of
something called 'obscenity' is still a long and painful step from agreement on a
workable definition of the term.

48

Recognizing that 'the freedoms of expression . . . are vulnerable to gravely


damaging yet barely visible encroachments,' Bantam Books, Inc. v. Sullivan,
372 U.S. 58, 66, 83 S.Ct. 631, 637, 9 L.Ed.2d 584 (1963), we have demanded
that 'sensitive tools' be used to carry out the 'separation of legitimate from
illegitimate speech.' Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342,
2 L.Ed.2d 1460 (1958). The essence of our problem in the obscenity area is that
we have been unable to provide 'sensitive tools' to separate obscenity from
other sexually oriented but constitutionally protected speech, so that efforts to
suppress the former do not spill over into the suppression of the latter. The
attempt, as the late Mr. Justice Harlan observed, has only 'produced a variety of
views among the members of the Court unmatched in any other course of
constitutional adjudication.' Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704

705, 88 S.Ct. 1298, 1314, 20 L.Ed.2d 225 (1968) (separate opinion).


49

To be sure, five members of the Court did agree in Roth that obscenity could be
determined by asking 'whether to the average person, applying contemporary
community standards, the dominant theme of the material taken as a whole
appeals to prurient interest.' 354 U.S., at 489, 77 S.Ct., at 1311. But agreement
on that testachieved in the abstract and without reference to the particular
material before the Court, see id., at 481 n. 8, 77 S.Ct., at 1307was, to say the
least, short lived. By 1967 the following views had emerged: Mr. Justice Black
and Mr. Justice Douglas consistently maintained that government is wholly
powerless to regulate any sexually oriented matter on the ground of its
obscenity. See, e.g., Ginzburg v. United States, 383 U.S. 463, 476, 482, 86
S.Ct. 942, 950, 953, 16 L.Ed.2d 31 (1966) (dissenting opinions); Jacobellis v.
Ohio, 378 U.S. 184, 196, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964)
(concurring opinion); Roth v. United States, supra, 354 U.S., at 508, 77 S.Ct.,
at 1321 (dissenting opinion). Mr. Justice Harlan, on the other hand, believed
that the Federal Government in the exercise of its enumerated powers could
control the distribution of 'hard core' pornography, which the States were
afforded more latitude to '(ban) any material which, taken as a whole, has been
reasonably found in state judicial proceedings to treat with sex in a
fundamentally offensive manner, under rationally established criteria for
judging such material.' Jacobellis v. Ohio, supra, 378 U.S., at 204, 84 S.Ct., at
1686 (dissenting opinion). See also, e.g., Ginzburg v. United States, supra, 383
U.S., at 493, 86 S.Ct., at 953 (dissenting opinion); A Quantity of Books v.
Kansas, 378 U.S. 205, 215, 84 S.Ct. 1723, 1727, 12 L.Ed.2d 809 (1964)
(dissenting opinion joined by Clark, J.); Roth, supra, 354 U.S., at 496, 77 S.Ct.,
at 1315 (separate opinion). Mr. Justice Stewart regarded 'hard core'
pornography as the limit of both federal and state power. See, e.g., Ginzburg v.
United States, supra, 383 U.S., at 497, 86 S.Ct., at 955 (dissenting opinion);
Jacobellis v. Ohio, supra, 378 U.S., at 197, 84 S.Ct., at 1683 (concurring
opinion).

50

The view that, until today, enjoyed the most, but not majority, support was an
interpretation of Roth (and not, as the Court suggests, a veering 'sharply away
from the Roth concept' and the articulation of 'a new test of obscenity,' Miller v.
California, 413 U.S., at 21, 93 S.Ct., at 2613) adopted by Mr. Chief Justice
Warren, Mr. Justice Fortas, and the author of this opinion in Memoirs v.
Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). We expressed
the view that Federal or State Governments could control the distribution of
material where 'three elements . . . coalesce: it must be established that (a) the
dominant theme of the material taken as a whole appeals to a prurient interest in
sex; (b) the material is patently offensive because it affronts contemporary

community standards relating to the description or representation of sexual


matters; and (c) the material is utterly without redeeming social value.' Id., at
418, 86 S.Ct., at 977. Even this formulation, however, concealed differences of
opinion. Compare Jacobellis v. Ohio, supra, 378 U.S., at 192195, 84 S.Ct., at
16801682 (Brennan, J., joined by Goldberg, J.) (community standards
national), with id., at 200 201, 84 S.Ct., at 16841685 (Warren, C.J., joined by
Clark, J., dissenting) (community standards local).7 Moreover, it did not
provide a definition covering all situations. See Mishkin v. New York, 383 U.S.
502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966) (prurient appeal defined in terms of a
deviant sexual group); Ginzburg v. United States, supra ('pandering' probative
evidence of obscenity in close cases). See also Ginsberg v. New York, 390 U.S.
629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) (obscenity for juveniles). Nor,
finally, did it ever command a majority of the Court. Aside from the other
views described above, Mr. Justice Clark believed that 'social importance'
could only 'be considered together with evidence that the material in question
appeals to prurient interest and is patently offensive.' Memoirs v.
Massachusetts, 383 U.S., at 445, 86 S.Ct., at 991 (dissenting opinion).
Similarly, Mr. Justice White regarded 'a publication to be obscene if its
predominant theme appeals to the prurient interest in a manner exceeding
customary limits of candor,' id., at 460461, 86 S.Ct., at 999 (dissenting
opinion), and regarded "social importance' . . . not (as) an independent test of
obscenity but (as) relevant only to determining the predominant prurient interest
of the material . . ..' Id., at 462, 86 S.Ct., at 999.
51

In the face of this divergence of opinion the Court began the practice in Redrup
v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), of per
curiam reversals of convictions for the dissemination of materials that at least
five members of the Court, applying their separate tests, deemed not to be
obscene. 8 This approach capped the attempt in Roth to separate all forms of
sexually oriented expression into two categoriesthe one subject to full
governmental suppression and the other beyond the reach of governmental
regulation to the same extent as any other protected form of speech or press.
Today a majority of the Court offers a slightly altered formulation of the basic
Roth test, while leaving entirely unchanged the underlying approach.

III
52

Our experience with the Roth approach has certainly taught us that the outright
suppression of obscenity cannot be reconciled with the fundamental principles
of the First and Fourteenth Amendments. For we have failed to formulate a
standard that sharply distinguishes protected from unprotected speech, and out
of necessity, we have resorted to the Redrup approach, which resolves cases as

between the parties, but offers only the most obscure guidance to legislation,
adjudication by other courts, and primary conduct. By disposing of cases
through summary reversal or denial of certiorari we have deliberately and
effectively obscured the rationale underlying the decisions. It comes as no
surprise that judicial attempts to follow our lead conscientiously have often
ended in hopeless confusion.
53

Of course, the vagueness problem would be largely of our own creation if it


stemmed primarily from our failure to reach a consensus on any one standard.
But after 16 years of experimentation and debate I am reluctantly forced to the
conclusion that none of the available formulas, including the one announced
today, can reduce the vagueness to a tolerable level while at the same time
striking an acceptable balance between the protections of the First and
Fourteenth Amendments, on the one hand, and on the other the asserted state
interest in regulating the dissemination of certain sexually oriented materials.
Any effort to draw a constitutionally acceptable boundary on state power must
resort to such indefinite concepts as 'prurient interest,' 'patent offensiveness,'
'serious literary value,' and the like. The meaning of these concepts necessarily
varies with the experience, outlook, and even idiosyncrasies of the person
defining them. Although we have assumed that obscenity does exist and that we
'know it when (we) see it,' Jacobellis v. Ohio, supra, 378 U.S., at 197, 84 S.Ct.,
at 1683 (Stewart, J., concurring), we are manifestly unable to describe it in
advance except by reference to concepts so elusive that they fail to distinguish
clearly between protected and unprotected speech.

54

We have more than once previously acknolwedged that 'constitutionally


protected expression . . . is often separated from obscenity only by a dim and
uncertain line.' Bantam Books, Inc. v. Sullivan, 372 U.S., at 66, 83 S.Ct., at
637. See also, e.g., Mishkin v. New York, supra, 383 U.S., at 511, 86 S.Ct., at
964. Added to the 'perhaps inherent residual vagueness' of each of the current
multitude of standards, Ginzburg v. United States, supra, 383 U.S., at 475 n. 19,
86 S.Ct., at 950, is the further complication that the obscenity of any particular
item may depend upon nuances of presentation and the context of its
dissemination. See ibid. Redrup itself suggested that obtrusive exposure to
unwilling individuals, distribution to juveniles, and 'pandering' may also bear
upon the determination of obscenity. See Redrup v. New York, supra, 386 U.S.,
at 769, 87 S.Ct., at 1415. As Mr. Chief Justice Warren stated in a related vein,
obscenity is a function of the circumstances of its dissemination:

55

'It is not the book that is on trial; it is a person. The conduct of the defendant is
the central issue, not the obscenity of a book or picture. The nature of the
materials is, of course, relevant as an attribute of the defendant's conduct, but

the materials are thus placed in context from which they draw color and
character.' Roth, 354 U.S., at 495, 77 S.Ct., at 1314 (concurring opinion).
56

See also, e.g., Jacobellis v. Ohio, supra, 378 U.S., at 201, 84 S.Ct., at 1685
(dissenting opinion); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 445446,
77 S.Ct. 1325, 13301331, 1 L.Ed.2d 1469 (1957) (dissenting opinion). I need
hardly point out that the factors which must be taken into account are
judgmental and can only be applied on 'a case-by-case, sight-by-sight' basis.
Mishkin v. New York, supra, 383 U.S., at 516, 86 S.Ct., at 968 (Black, J.,
dissenting). These considerations usggest that no one definition, no matter how
precisely or narrowly drawn, can possibly suffice for all situations, or carve out
fully suppressible expression from all media without also creating a substantial
risk of encroachment upon the guarantees of the Due Process Clause and the
First Amendment.9

57

The vagueness of the standards in the obscenity area produces a number of


separate problems, and any improvement must rest on an understanding that the
problems are to some extent distinct. First, a vague statute fails to provide
adequate notice to persons who are engaged in the type of conduct that the
statute could be thought to proscribe. The Due Process Clause of the
Fourteenth Amendment requires that all criminal laws provide fair notice of
'what the State commands or forbids.' Lanzetta v. New Jersey, 306 U.S. 451,
453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939); Connally v. General Construction
Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). In the service of this
general principle we have repeatedly held that the definition of obscenty must
provide adequate notice of exactly what is prohibited from dissemination. See,
e.g., Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258 (1972);
Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225
(1968); Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948).
While various tests have been upheld under the Due Process Clause, see
Ginsberg v. New York, 390 U.S., at 643, 88 S.Ct., at 1282; Mishkin v. New
York, 383 U.S., at 506507, 86 S.Ct., at 962963; Roth v. United States, 354
U.S., at 491492, 77 S.Ct., at 13121313, I have grave doubts that any of
those tests could be sustained today. For I know of no satisfactory answer to the
assertin by Mr. Justice Black, 'after the fourteen separate opinions handed
down' in the trilogy of cases decided in 1966, that 'no person, not even the most
learned judge much less a layman, is capable of knowing in advance of an
ultimate decision in his particular case by this Court whether certain material
comes within the area of 'obscenity' . . ..' Ginzburg v. United States, 383 U.S.,
at 480481, 86 S.Ct., at 952953 (dissenting opinion). See also the statement
of Mr. Justice Harlan in Interstate Circuit, Inc. Justice Harlan in Interstate
Circuit, Inc. v. Dallas, supra, 390 U.S., at 707, 88 S.Ct., Chief Justice Warren

pointed out, '(t)he constitutional requirement of definiteness is violated by a


criminal statute that fails to give a person of ordinary intelligence fair notice
that his contemplated conduct is forbidden by the statute. The underlying
principle is that no man shall be held criminally responsible for conduct which
he could not reasonably understand to be proscribed.' United States v. Harriss,
347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). In this context, even
the most painstaking efforts to determine in advance whether certain sexually
oriented expression is obscene must inevitably prove unavailing. For the
insufficiency of the notice compels persons to guess not only whether their
conduct is covered by a criminal statute, but also whether their conduct falls
within the constitutionally permissible reach of the statute. The resulting level
of uncertainty is utterly intolerable, not alone because it makes '(b)ookselling . .
. a hazardous profession,' Ginsberg v. New York, supra, 390 U.S., at 674, 88
S.Ct., at 1298 (Fortas, J., dissenting), but as well because it invites arbitrary and
erratic enforcement of the law. See, e.g., Papachristou v. City of Jacksonville,
405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Gregory v. City of
Chicago, 394 U.S. 111, 120, 89 S.Ct. 946, 951, 22 L.Ed.2d 134 (1969) (Black,
J., concurring); Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95
L.Ed. 267, 280 (1951); Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct.
900, 905, 84 L.Ed.2d 1213 (1940); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct.
736, 84 L.Ed. 1093 (1940).
58

In addition to problems that arise when any criminal statute fails to afford fair
notice of what it forbids, a vague statute in the areas of speech and press creates
a second level of difficulty. We have indicated that 'stricter standards of
permissible statutory vagueness may be applied to a statute having a potentially
inhibiting effect on speech; a man may the less be required to act at his peril
here, because the free dissemination of ideas may be the loser.'10 Smith v.
California, 361 U.S. 147, 151, 80 S.Ct., 215, 217, 4 L.Ed.2d 205 (1959). That
proposition draws its strength from our recognition that

59

'(t)he fundamental freedoms of speech and press have contributed greatly to the
development and well-being of our free society and are indispensable to its
continued growth. Ceaseless vigilance is the watchword to prevent their erosion
by Congress or by the States. The door barring federal and state intrusion into
this area cannot be left ajar . . ..' Roth, supra, 354 U.S., at 488, 77 S.Ct., at
1311.11

60

To implement this general principle, and recognizing the inherent vagueness of


any definition of obscenity, we have held that the definition of obscenity must
be drawn as narrowly as possible so as to minimize the interference with
protected expression. Thus, in Roth we rejected the test of Regina v. Hicklin,

(1868) L.R. 3 Q.B. 360, that '(judged) obscenity by the effect of isolated
passages upon the most susceptible persons.' 354 U.S., at 489, 77 S.Ct., at
1311. That test, we held in Roth, 'might well encompass material legitimately
treating with sex . . ..' Ibid. Cf. Mishkin v. New York, supra, 383 U.S., at 509,
86 S.Ct., at 963. And we have supplemented the Roth standard with additional
tests in an effort to hold in check the corrosive effect of vagueness on the
guarantees of the First Amendment.12 We have held, for example, that 'a State
is not free to adopt whatever procedures it pleases for dealing with obscenity . .
..' Marcus v. Search Warrants, 367 U.S. 717, 731, 81 S.Ct. 1708, 1716, 6
L.Ed.2d 1127 (1961). 'Rather, the First Amendment requires that procedures be
incorporated that 'ensure against the curtailment of constitutionally protected
expression . . .." Blount v. Rizzi, 400 U.S. 410, 416, 91 S.Ct. 423, 428, 27
L.Ed.2d 498 (1971), quoting from Bantam Books, Inc., v. Sullivan, 372 U.S., at
66, 83 S.Ct., at 637. See generally Rizzi, supra, 400 U.S., at 417, 91 S.Ct., at
428; United States v. Thirty-Seven Photographs, 402 U.S. 363, 367 375, 91
S.Ct. 1400, 14031408, 28 L.Ed.2d 822 (1971); Lee Art Theatre, Inc. v.
Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968); Freedman v.
Maryland, 380 U.S. 51, 5860, 85 S.Ct. 734, 738740, 13 L.Ed.2d 649
(1965); A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723,
12 L.Ed.2d 809 (1964) (plurality opinion).
61

Similarly, we have held that a State cannot impose criminal sanctions for the
possession of obscene material absent proof that the possessor had knowledge
of the contents of the material. Smith v. California, supra. 'Proof of scienter' is
necessary 'to avoid the hazard of self-censorship of constitutionally protected
material and to compensate for the ambiguities inherent in the definition of
obscenity.' Mishkin v. New York, supra, 383 U.S., at 511, 86 S.Ct., at 965;
Ginsberg v. New York, supra, 390 U.S., at 644645, 88 S.Ct., at 12831284.
In short,

62

'(t)he objectionable quality of vagueness and overbreadth . . . (is) the danger of


tolerating, in the area of First Amendment freedoms, the existence of a penal
statute susceptible of sweeping and improper application. Cf. Marcus v. Search
Warrant, 367 U.S. 717, 733 (81 S.Ct. 1708, 1717) 6 L.Ed.2d 1127. These
freedoms are delicate and vulnerable, as well as supremely precious in our
society. The threat of sanctions may deter their exercise almost as potently as
the actual application of sanctions. Cf. Smith v. California, (361 U.S. 147), at
151154 (80 S.Ct. 215, at 217219, 4 L.Ed.2d 205): Speiser v. Randall, 357
U.S. 513, 526 (78 S.Ct. 1332, 1342), 2 L.Ed.2d 1460. Because First
Amendment freedoms need breathing space to survive, government may
regulate in the area only with narrow specificity. Cantwell v. Connecticut, 310
U.S. 296, 311 (60 S.Ct. 900, 906) 84 L.Ed. 1213.' NAACP v. Button, 371 U.S.

415, 432433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963).


63

The problems of fair notice and chilling protected speech are very grave
standing alone. But it does not detract from their importance to recognize that a
vague statute in this area creates a third, although admittedly more subtle, set of
problems. These problems concern the institutional stress that inevitably results
where the line separating protected from unprotected speech is excessively
vague. In Roth we conceded that 'there may be marginal cases in which it is
difficult to determine the side of the line on which a particular fact situation
falls . . ..' 354 U.S., at 491492, 77 S.Ct., at 1313. Our subsequent experience
demonstrates that almost every case is 'marginal.' And since the 'margin' marks
the point of separation between protected and unprotected speech, we are left
with a system in which almost every obscenity case presents a constitutional
question of exceptional difficulty. 'The suppression of a particular writing or
other tangible form of expression is . .. an individual matter, and in the nature
of things every such suppression raises an individual constitutional problem, in
which a reviewing court must determine for itself whether the attacked
expression is suppressable within constitutional standards.' Roth, supra, 354
U.S., at 497, 77 S.Ct., at 1315 (separate opinion of Harlan, J.).

64

Examining the rationale, both explicit and implicit, of our vagueness decisions,
one commentator has viewed these decisions as an attempt by the Court to
establish an 'insulating buffer zone of added protection at the peripheries of
several of the Bill of Rights freedoms.' Note, The Void-for-Vagueness Doctrine
in the Supreme Court, 109 U.Pa.L.Rev. 67, 75 (1960). The buffer zone enables
the Court to fend off legislative attempts 'to pass to the courtsand ultimately
to the Supreme Courtthe awesome task of making case by case at once the
criminal and the constitutional law.' Id., at 81. Thus,

65

'(b)ecause of the Court's limited power to reexamine fact on a cold record, what
appears to be going on in the administration of the law must be forced, by
restrictive procedures, to reflect what is really going on; and because of the
impossibility, through sheer volume of cases, of the Court's effectively policing
law administration case by case, those procedures must be framed to assure, as
well as procedures can assure, a certain overall probability of regularity.' Id., at
89. (emphasis in original).

66

As a result of our failure to define standards with predictable application to any


given piece of material, there is no probability of regularity in obscenity
decisions by state and lower federal courts. That is not to say that these courts
have performed badly in this area or paid insufficient attention to the principles
we have established. The problem is, rather, that one cannot say with certainty

that material is obscene until at least five members of this Court, applying
inevitably obscure standards, have pronounced it so. The number of obscenity
cases on our docket gives ample testimony to the burden that has been placed
upon this Court.
67

But the sheer number of the cases does not define the full extent of the
institutional problem. For, quite apart from the number of cases involved and
the need to make a fresh constitutional determination in each case, we are tied
to the 'absurd business of perusing and viewing the miserable stuff that pours
into the Court . . ..' Interstate Circuit, Inc. v. Dallas, 390 U.S., at 707, 88 S.Ct.,
at 1315 (separate opinion of Harlan, J.). While the material may have varying
degrees of social importance, it is hardly a source of edification to the members
of this Court who are compelled to view it before passing on its obscenity. Cf.
Mishkin v. New York, 383 U.S., at 516517, 86 S.Ct., at 968969 (Black, J.,
dissenting).

68

Moreover, we have managed the burden of deciding scores of obscenity cases


by relying on per curiam reversals or denials of certioraria practice which
conceals the rationale of decision and gives at least the appearance of arbitrary
action by this Court. See Bloss v. Dykema, 398 U.S. 278, 90 S.Ct. 1727, 26
L.Ed.2d 230 (1970) (Harlan, J., dissenting). More important, no less than the
procedural schemes struck down in such cases as Blount v. Rizzi, supra, and
Freedman v. Maryland, supra, the practice effectively censors protected
expression by leaving lower court determinations of obscenity intact even
though the status of the allegedly obscene material is entirely unsettled until
final review here. In addition, the uncertainty of the standards creates a
continuing source of tension between state and federal courts, since the need for
an independent determination by this Court seems to render superfluous even
the most conscientious analysis by state tribunals. And our inability to justify
our decisions with a persuasive rationaleor indeed, any rationale at all
necessarily creates the impression that we are merely second-guessing state
court judges.

69

The severe problems arising from the lack of fair notice, from the chill on
porotected expression, and from the stress imposed on the state and federal
judicial machinery persuade me that a significant change in direction is urgently
required. I turn, therefore, to the alternatives that are now open.

IV
70

1. The approach requiring the smallest deviation from our present course would
be to draw a new line between protected and unprotected speech, still

permitting the States to suppress all material on the unprotected side of the line.
In my view, clarity cannot be obtained pursuant to this approach except by
drawing a line that resolves all doubt in favor of state power and against the
guarantees of the First Amendment. We could hold, for example, that any
depiction or description of human sexual organs, irrespective of the manner or
purpose of the portrayal, is outside the protection of the First Amendment and
therefore open to suppression by the States. That formula would, no doubt,
offer much fairer notice of the reach of any state statute drawn at the boundary
of the State's constitutional power. And it would also, in all likelihood, give rise
to a substantial probability of regularity in most judicial determinations under
the standard. But such a standard would be appallingly overbroad, permitting
the suppression of a vast range of literary, scientific, and artistic masterpieces.
Neither the First Amendment nor any free community could possibly tolerate
such a standard. Yet short of that extreme it is hard to see how any choice of
words could reduce the vagueness problem to tolerable proportions, so long as
we remain committed to the view that some class of materials is subject to
outright suppression by the State.
71

2. The alternative adopted by the Court today recognizes that a prohibition


against any depiction or description of human sexual organs could not be
reconciled with the guarantees of the First Amendment. But the Court does
retain the view that certain sexually oriented material can be considered
obscene and therefore unprotected by the First and Fourteenth Amendments. To
describe that unprotected class of expression, the Court adopts a restatement of
the Roth-Memoirs definition of obscenity: 'The basic guidelines for the trier of
fact must be: (a) whether 'the average person, applying contemporary
community standards' would find that the work, taken as a whole, appeals to
the prurient interest . .. (b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable state law,
and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.' Miller v. California, 413 U.S., at 24, 93 S.Ct., at
2615. In apparent illustration of 'sexual conduct,' as that term is used in the
test's second element, the Court identifies '(a) Patently offensive representations
or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,'
and '(b) Patently offensive representations or descriptions of masturbation,
excretory functions, and lewd exhibition of the genitals.' Id., 25, 93 S.Ct., at
2615.

72

The differences between this formulation and the three-pronged Memoirs test
are, for the most part, academic.13 The first element of the Court's test is
virtually identical to the Memoirs requirement that 'the dominant theme of the
material taken as a whole (must appeal) to a prurient interest in sex.' 383 U.S.,

at 418, 86 S.Ct., at 977. Whereas the second prong of the Memoirs test
demanded that the material be 'patently offensive because it affronts
contemporary community standards relating to the description or representation
of sexual matters,' ibid., the test adopted today requires that the material
describe, 'In a patently offensive way, sexual conduct specifically defined by
the applicable state law.' Miller v. California, 413 U.S., at 24, 93 S.Ct., at 2615.
The third component of the Memoirs test is that the material must be 'utterly
without redeeming social value.' 383 U.S., at 418, 86 S.Ct., at 977. The Court's
rephrasing requires that the work, taken as a whole, must be proved to lack
'serious literary, artistic, political, or scientific value.' Miller, 413 U.S., at 24, 93
S.Ct., at 2615.
73

The Court evidently recognizes that difficulties with the Roth approach
necessitate a significant change of direction. But the Court does not describe its
understanding of those difficulties, nor does it indicate how the restatement of
the Memoirs test is in any way responsive to the problems that have arisen. In
my view, the restatement leaves unresolved the very difficulties that compel our
rejection of the underlying Roth approach, while at the same time contributing
substantial difficulties of its own. The modification of the Memoirs test may
prove sufficient to jeopardize the analytic underprinnings of the entire scheme.
And today's restatement will likely have the effect, whether or not intended, of
permitting far more sweeping suppression of sexually oriented expression,
including expression that would almost surely be held protected under our
current formulation.

74

Although the Court's restatement substantially tracks the three-part test


announced in Memoirs v. Massachusetts, supra, it does purport to modify the
'social value' component of the test. Instead of requiring, as did Roth and
Memoirs, that state suppression be limited to materials utterly lacking in social
value, the Court today permits suppression if the government can prove that the
materials lack 'serious literary, artistic, political or scientific value.' But the
definition of 'obscenity' as expression utterly lacking in social importance is the
key to the conceptual basis of Roth and our subsequent opinions. In Roth we
held that certain expression is obscene, and thus outside the protection of the
First Amendment, precisely because it lacks even the slightest redeeming social
value. See Roth v. United States, 354 U.S., at 484485, 77 S.Ct., at 1308
1309;14 Jacobellis v. Ohio, 378 U.S., at 191, 84 S.Ct., at 1680; Zeitlin v.
Arnebergh, 59 Cal.2d 901, 920, 31 Cal.Rptr. 800, 813, 383 P.2d 152, 165
(1963); cf. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11
L.Ed.2d 686 (1964); Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216,
13 L.Ed.2d 125 (1964); Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62
S.Ct. 766, 769, 86 L.Ed. 1031 (1942); Kalven, The Metaphysics of the Law of

Obscenity, 1960 Sup.Ct.Rev. 1. The Court's approach necessarily assumes that


some works will be deemed obsceneeven though they clearly have some
social value because the State was able to prove that the value, measured by
some unspecified standard, was not sufficiently 'serious' to warrant
constitutional protection. That result is not merely inconsistent with our holding
in Roth; it is nothing less than a rejection of the fundamental First Amendment
premises and rationale of the Roth opinion and an invitation to widespread
suppression of sexually oriented speech. Before today, the protections of the
First Amendment have never been thought limited to expressions of serious
literary or political value. See Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103,
31 L.Ed.2d 408(1972); Cohen v. California, 403 U.S. 15, 2526, 91 S.Ct.
1780, 17881789, 29 L.Ed.2d 284 (1971); Terminiello v. Chicago, 337 U.S. 1,
45, 69 S.Ct. 894, 895896, 93 L.Ed. 1131 (1949).
75

Although the Court concedes that 'Roth presumed 'obscenity' to be 'utterly


without redeeming social importance," it argues that Memoirs produced 'a
drastically altered test that called on the prosecution to prove a negative, i.e.,
that the material was 'utterly without redeeming social value'a burden
virtually impossible to discharge under our criminal standards of proof.'15 One
should hardly need to point out that under the third component of the Court's
test the prosecution is still required to 'prove a negative'i.e., that the material
lacks serious literary, artistic, political, or scientific value. Whether it will be
easier to prove that material lacks 'serious' value than to prove that it lacks any
value at all remains, of course, to be seen.

76

In any case, even if the Court's approach left undamaged the conceptual
framework of Roth, and even if it clearly barred the suppression of works with
at least some social value, I would nevertheless be compelled to reject it. For it
is beyond dispute that the approach can have no ameliorative impact on the
cluster of problems that grow out of the vagueness of our current standards.
Indeed, even the Court makes no argument that the reformulation will rpvoide
fairer notice to booksellers, theater owners, and the reading and viewing public.
Nor does the Court contend that the approach will provide clearer guidance to
law enforcement officials or reduce the chill on porotected expression. Nor,
finally, does the Court suggest that the approach will mitigate to the slightest
degree the institutional problems that have plagued this Court and the state and
federal judiciary as a direct result of the uncertainty inherent in any definition of
obscenity.

77

Of course, the Court's restated Roth test does limit the definition of obscenity to
depictions of physical conduct and explicit sexual acts. And that limitation may
seem, at first glance, a welcome and clarifying addition to the Roth-Memoirs

formula. But, just as the agreement in Roth on an abstract definition of


obscenity gave little hint of the extreme difficulty that was to follow in
attempting to apply that definition to specific material, the mere formulation of
a 'physical conduct' test is no assurance that it can be applied with any greater
facility. The Court does not indicate how it would apply its test to the materials
involved in Miller v. California, supra, and we can only speculate as to its
application. But even a confirmed optimist could find little realistic comfort in
the adoption of such a test. Indeed, the valiant attempt of one lower federal
court to draw the constitutional line at depictions of explicit sexual conduct
seems to belie any suggestion that this approach marks the road to clarity.16 The
Court surely demonstrates little sensitivity to our own institutional problems,
much less the other vagueness-related difficulties, in establishing a system that
requires us to consider whether a description of human genitals is sufficiently
'lewd' to deprive it of constitutional protection; whether a sexual act is
'ultimate'; whether the conduct depicted in materials before us fits within one of
the categories of conduct whose depiction the State and Federal Governments
have attempted to suppress; and a host of equally pointless inquiries. In
addition, adoption of such a test does not, presumably, obviate the need for
consideration of the nuances of presentation of sexually oriented material, yet it
hardly clarifies the application of those opaque but important factors.
78

If the application of the 'physical conduct' test to pictorial material is fraught


with difficulty, its application to textual material carries the potential for
extraordinary abuse. Surely we have passed the point where the mere written
description of sexual conduct is deprived of First Amendment protection. Yet
the test offers no guidance to us, or anyone else, in determining which written
descriptions of sexual conduct are protected, and which are not.

79

Ultimately, the reformulation must fail because it still leaves in this Court the
responsibility of determining in each case whether the materials are protected
by the First Amendment. The Court concedes that even under its restated
formulation, the First Amendment interests at stake require 'appellate courts to
conduct an independent review of constitutional claims when necessary,' Miller
v. California, 413 U.S., at 25, 93 S.Ct., at 2615, citing Mr. Justice Harlan's
opinion in Roth, where he stated, 'I do not understand how the Court can
resolve the constitutional problems now before it without making its own
independent judgment upon the character of the material upon which these
convictions were based.' 354 U.S., at 498, 77 S.Ct., at 1316. Thus, the Court's
new formulation will not relieve us of 'the awesome task of making case by
case at once the criminal and the constitutional law.'17 And the careful efforts
of state and lower federal courts to apply the standard will remain an essentially
pointless exercise, in view of the need for an ultimate decision by this Court. In

addition, since the status of sexually oriented material will necessarily remain in
doubt until final decision by this Court, the new approach will not diminish the
chill on protected expression that derives from the uncertainty of the underlying
standard. I am convinced that a definition of obscenity in terms of physical
conduct cannot provide sufficient clarity to afford fair notice, to avoid a chill on
protected expression, and to minimize the institutional stress, so long as that
definition is used to justify the outright suppression of any material that is
asserted to fall within its terms.
80

3. I have also considered the possibility of reducing our own role, and the role
of appellate courts generally, in determining whether particular matter is
obscene. Thus, we might conclude that juries are best suited to determine
obscenity vel non and that jury verdicts in this area should not be set aside
except in cases of extreme departure from prevailing standards. Or, more
generally, we might adopt the position that where a lower federal or state court
has conscientiously applied the constitutional standard, its finding of obscenity
will be no more vulnerable to reversal by this Court than any finding of fact. Cf.
Interstate Circuit, Inc. v. Dallas, 390 U.S., at 706707, 88 S.Ct., at 1315 1316
(separate opinion of Harlan, J.). While the point was not clearly resolved prior
to our decision in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18
L.Ed.2d 515 (1967),18 it is implicit in that decision that the First Amendment
requires an independent review by appellate courts of the constitutional fact of
obscenity.19 That result is required by principles applicable to the obscenity
issue no less than to any other area involving free expression, see, e.g., New
York Times Co. v. Sullivan, 376 U.S., at 284285, 84 S.Ct., at 728729, or
other constitutional right.20 In any event, even if the Constitution would permit
us to refrain from judging for ourselves the alleged obscenity of particular
materials, that approach would solve at best only a small part of our problem.
For while it would mitigate the institutional stress produced by the Roth
approach, it would neither offer nor produce any cure for the other vices of
vagueness. Far from providing a clearer guide to permissible primary conduct,
the approach would inevitably lead to even greater uncertainty and the
consequent duen process problems of fair notice. And the approach would
expose much protected, sexually oriented expression to the vagaries of jury
determinations. Cf. Herndon v. Lowry, 301 U.S. 242, 263, 57 S.Ct. 732, 741,
81 L.Ed. 1066 (1937). Plainly, the institutional gain would be more than offset
by the unprecedented infringement of First Amendment rights.

81

4. Finally, I have considered the view, urged so forcefully since 1957 by our
Brothers Black and Douglas, that the First Amendment bars the suppression of
any sexually oriented expression. That position would effect a sharp reduction,
although perhaps not a total elimination, of the uncertainty that surrounds our

current approach. Nevertheless, I am convinced that it would achieve that


desirable goal only by stripping the States of power to an extent that cannot be
justified by the commands of the Constitution, at least so long as there is
available an alternative approach that strikes a better balance between the
guarantee of free expression and the States' legitimate interests.
V
82

Our experience since Roth requires us not only to abandon the effort to pick out
obscene material on a case-by-case basis, but also to reconsider a fundamental
postulate of Roth: that there exists a definable class of sexually oriented
expression that may be totally suppressed by the Federal and State
Governments. Assuming that such a class of expression does in fact exist,21 I
am forced to conclude that the concept of 'obscenity' cannot be defined with
sufficient specificity and clarity to provide fair notice to persons who create and
distribute sexually oriented materials, to prevent substantial erosion of protected
speech as a byproduct of the attempt to suppress unprotected speech, and to
avoid very costly institutional harms. Given these inevitable side effects of state
efforts to suppress what is assumed to be unprotected speech, we must
scrutinize with care the state interest that is asserted to justify the suppression.
For in the absence of some very substantial interest in suppressing such speech,
we can hardly condone the ill effects that seem to flow inevitably from the
effort. 22

83

Obscenity laws have a long history in this country. Most of the States that had
ratified the Constitution by 1792 punished the related crime of blasphemy or
profanity despite the guarantees of free expression in their constitutions, and
Massachusetts expressly prohibited the 'Composing, Writing, Printing or
Publishing, of any Filthy Obscene or Prophane Song, Pamphlet, Libel or MockSermon, in Imitation or in Mimicking of Preaching, or any other part of Divine
Worship.' Acts and Laws of Massachusetts Bay Colony (1726), Acts of 1711
1712, c. 1, p. 218. In 1815 the first reported obscenity conviction was obtained
under the common law of Pennsylvania. See Commonwealth v. Sharpless, 2 S.
& R. 91. A conviction in Massachusetts under its common law and colonial
statute followed six years later. See Commonwealth v. Holmes, 17 Mass. 336
(1821). In 1821 Vermont passed the first state law proscribing the publication
or sale of 'lewd or obscene' material, Laws of Vermont, 1824, c. XXXII, No. 1,
23, and federal legislation barring the importation of similar matter appeared
in 1842. See Tariff Act of 1842, 28, 5 obscenity laws was small and their
enforcement exceedingly lax, the situation significantly changed after about
1870 when Federal and State Governments, mainly as a result of the efforts of
Anthony Comstock, took an active interest in the suppression of obscenity. By

the end of the 19th century at least 30 States had some type of general
prohibition on the dissemination of obscene materials, and by the time of our
decision in Roth no State was without some provision on the subject. The
Federal Government meanwhile had enacted no fewer than 20 obscenity laws
between 1842 and 1956. See Roth v. United States, 354 U.S., at 482483, 485,
77 S.Ct., at 13071308, 1309; Report of the Commission on Obscenity and
Pornography 300301 (1970).
84

This history caused us to conclude in Roth 'that the unconditional phrasing of


the First Amendment (that 'Congress shall make no law .. . abridging the
freedom of speech, or of the press . . .') was not intended to protect every
utterance.' 354 U.S., at 483, 77 S.Ct., at 1308. It also caused us to hold, as
numerous prior decisions of this Court had assumed, see id., at 481, 77 S.Ct., at
1306, that obscenity could be denied the protection of the First Amendment and
hence suppressed because it is a form of expression 'utterly without redeeming
social importance,' id., at 484, 77 S.Ct., at 1309, as 'mirrored in the universal
judgment that (it) should be restrained . . ..' Id., at 485, 77 S.Ct., at 1309.

85

Because we assumedincorrectly, as experience has provedthat obscenity


could be separated from other sexually oriented expression without significant
costs either to the First Amendment or to the judicial machinery charged with
the task of safeguarding First Amendment freedoms, we had no occasion in
Roth to probe the asserted state interest in curtailing unprotected, sexually
oriented speech. Yet, as we have increasingly come to appreciate the vagueness
of the concept of obscenity, we have begun to recognize and articulate the state
interests at stake. Significantly, in Redrup v. New York, 386 U.S. 767, 87 S.Ct.
1414, 18 L.Ed.2d 515 (1967), where we set aside findings of obscenity with
regard to three sets of material, we pointed out that

86

'(i)n none of the cases was there a claim that the statute in question reflected a
specific and limited state concern for juveniles. See Prince v. Massachusetts,
321 U.S. 158 (64 S.Ct. 438) 88 L.Ed. 645; cf. Butler v. Michigan, 352 U.S. 380
(77 S.Ct. 524) 1 L.Ed.2d 412. In none was there any suggestion of an assault
upon individual privacy by publication in a manner so obtrusive as to make it
impossible for an unwilling individual to avoid exposure to it. Cf. Breard v.
Alexandria, 341 U.S. 622 (71 S.Ct. 920) 95 L.Ed. 1233; Public Utilities
Comm'n v. Pollak, 343 U.S. 451 (72 S.Ct. 813) 96 L.Ed. 1068. And in none
was there evidence of the sort of 'pandering' which the Court found significant
in Ginzburg v. United States, 383 U.S. 463 (86 S.Ct. 942) 16 L.Ed.2d 31.' 386
U.S., at 769, 87 S.Ct., at 1415.

87

See Rowan v. U.S. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d

736 (1970); Stanley v. Georgia, 394 U.S., at 567, 89 S.Ct., at 1249.23


88

The opinions in Redrup and Stanley reflected our emerging view that the state
interests in protecting children and in protecting unconsenting adults may stand
on a different footing from the other asserted state interests. It may well be, as
one commentator has argued, that 'exposure to (erotic material) is for some
persons an intense emotional experience. A communication of this nature,
imposed upon a person contrary to his wishes, has all the characteristics of a
physical assault. . . . (And it) constitutes an invasion of his privacy . . ..'24 But
cf. Cohen v. California, 403 U.S., at 2122, 91 S.Ct., at 17861787.
Similarly, if children are 'not possessed of that full capacity for individual
choice which is the presupposition of the First Amendment guarantees,'
Ginsberg v. New York, 390 U.S., at 649650, 88 S.Ct., at 1286 (Stewart, J.,
concurring), then the State may have a substantial interest in precluding the
flow of obscene materials even to consenting juveniles.25 But cf. id., at 673
674, 88 S.Ct., at 12971298 (Fortas, J., dissenting).

89

But, whatever the strength of the state interests in protecting juveniles and
unconsenting adults from exposure to sexually oriented materials, those
interests cannot be asserted in defense of the holding of the Georgia Supreme
Court in this case. That court assumed for the purposes of its decision that the
films in issue were exhibited only to persons over the age of 21 who viewed
them willingly and with prior knowledge of the nature of their contents. And on
that assumption the state court held that the films could still be suppressed. The
justification for the suppression must be found, therefore, in some independent
interest in regulating the reading and viewing habits of consenting adults.

90

At the outset it should be noted that virtually all of the interests that might be
asserted in defense of suppression, laying aside the special interests associated
with distribution to juveniles and unconsenting adults, were also posited in
Stanley v. Georgia, supra, where we held that the State could not make the
'mere private possession of obscene material a crime.' Id., 394 U.S., at 568, 89
S.Ct., at 1249. That decision presages the conclusions I reach here today.

91

In Stanley we pointed out that '(t)here appears to be little empirical basis for' the
assertion that 'exposure to obscene materials may lead to deviant sexual
behavior or crimes of sexual violence.' Id., at 566 and n. 9, 89 S.Ct., at 1249.26
In any event, we added that 'if the State is only concerned about printed or
filmed materials inducing antisocial conduct, we believe that in the context of
private consumption of ideas and information we should adhere to the view that
'(a)mong free men, the deterrents ordinarily to be applied to prevent crime are
education and punishment for violations of the law . . ..' Whitney v. California,

274 U.S. 357, 378 (, 47 S.Ct. 641, 649) 71 L.Ed. 1095 (1927) (Brandeis, J.,
concurring).' Id., at 566567, 89 S.Ct., at 1249.
92

Moreover, in Stanley we rejected as 'wholly inconsistent with the philosophy of


the First Amendment,' id., at 566, 89 S.Ct., at 1248, the notion that there is a
legitimate state concern in the 'control (of) the moral content of a person's
thoughts,' id., at 565, 89 S.Ct., at 1248, and we held that a State 'cannot
constitutionally premise legislation on the desirability of controlling a person's
private thoughts.' Id., at 566, 89 S.Ct., at 1249. That is not to say, of course, that
a State must remain utterly indifferent toand take no action bearing onthe
morality of the community. The traditional description of state police power
does embrace the regulation of morals as well as the health, safety, and general
welfare of the citizenry. See, e.g., Village of Euclid v. Ambler Realty Co., 272
U.S. 365, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926). And much legislation
compulsory public education laws, civil rights laws, even the abolition of
capital punishmentis grounded, at least in part, on a concern with the
morality of the community. But the State's interest in regulating morality by
suppressing obscenity, while often asserted, remains essentially unfocused and
ill defined. And, since the attempt to curtail unprotected speech necessarily
spills over into the areas of protected speech, the effort to serve this speculative
interest through the suppression of obscene material must tread heavily on
rights protected by the First Amendment.

93

In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), we held
constitutionally invalid a state abortion law, even though we were aware of

94

'the sensitive and emotional nature of the abortion controversy, of the vigorous
opposing views, even among physicians, and of the deep and seemingly
absolute convictions that the subject inspires. One's philosophy, one's
experiences, one's exposure to the raw edges of human existence, one's
religious training, one's attitudes toward life and family and their values, and
the moral standards one establishes and seeks to observe, are all likely to
influence and to color one's thinking and conclusions about abortion.' Id., at
116, 93 S.Ct., at 708.

95

Like the proscription of abortions, the effort to suppress obscenity is predicated


on unprovable, although strongly held, assumptions about human behavior,
morality, sex, and religion.27 The existence of these assumptions cannot
validate a statute that substantially undermines the guarantees of the First
Amendment, any more than the existence of similar assumptions on the issue of
abortion can validate a statute that infringes the constitutionally protected
privacy interests of a pregnant woman.

96

If, as the Court today assumes, 'a state legislature may . . . act on the . . .
assumption that commerce in obscene books, or public exhibitions focused on
obscene conduct, have a tendency to exert a corrupting and debasing impact
leading to antisocial behavior,' ante, at 63, then it is hard to see how stateordered regimentation of our minds can ever be forestalled. For if a State, in an
effort to maintain or create a particular moral tone, may prescribe what its
citizens cannot read or cannot see, then it would seem to follow that in pursuit
of that same objective a State could decree that its citizens must read certain
books or must view certain films. Cf. United States v. Roth, 237 F.2d 796, 823
(CA2 1956) (Frank, J., concurring). However laudable its goal and that is
obviously a question on which reasonable minds may differthe State cannot
proceed by means that violate the Constitution. The precise point was
established a half century ago in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct.
625, 67 L.Ed. 1042 (1923).

97

'That the State may do much, go very far, indeed, in order to improve the
quality of its citizens, physically, mentally and morally, is clear; but the
individual has certain fundamental rights which must be respected. The
protection of the Constitution extends to all, to those who speak other
languages as well as to those born with English on the tongue. Perhaps it would
be highly advantageous if all had ready understanding of our ordinary speech,
but this cannot be coerced by methods which conflict with the Constitutiona
desirable and cannot be promoted by prohibited means.

98

'For the welfare of his Ideal Commonwealth, Plato suggested a law which
should provide: 'That the wives of our guardians are to be common, and their
children are to be common, and no parent is to know his own child, nor any
child his parent . . . The proper officers will take the offspring of the good
parents to the pen or fold, and there they will deposit them with certain nurses
who dwell in a separate quarter; but the offspring of the inferior, or of the better
when they chance to be deformed, will be put away in some mysterious,
unknown place, as they should be.' In order to submerge the individual and
develop ideal citizens, Sparta assembled the males at seven into barracks and
intrusted their subsequent education and training to official guardians. Although
such measures have been deliberately approved by men of great genius, their
ideas touching the relation between individual and State were wholly different
from those upon which our institutions rest; and it hardly will be affirmed that
any legislature could impose such restrictions upon the people of a State
without doing violence to both letter and spirit of the Constitution.' Id., at 401
402, 43 S.Ct., at 627628.

99

Recognizing these principles, we have held that so-called thematic obscenity

obscenity which might persuade the viewer or reader to engage in 'obscene'


conductis not outside the protection of the First Amendment:
100 'It is contended that the State's action was justified because the motion picture
attractively portrays a relationship which is contrary to the moral standards, the
religious precepts, and the legal code of its citizenry. This argument
misconceives what it is that the Constitution protects. Its guarantee is not
confined to the expression of ideas that are conventional or shared by a
majority. It protects advocacy of the opinion that adultery may sometimes be
proper, no less than advocacy of socialism or the single tax. And in the realm of
ideas it protects expression which is eloquent no less than that which is
unconvincing.' Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 688
689, 79 S.Ct. 1362, 1365, 3 L.Ed.2d 1512 (1959).
101 Even a legitimate, sharply focused state concern for the morality of the
community cannot, in other words, justify an assault on the protections of the
First Amendment. Cf. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678,
14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31
L.Ed.2d 349 (1972); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d
1010 (1967). Where the state interest in regulation of morality is vague and ill
defined, interference with the guarantees of the First Amendment is even more
difficult to justify.28
102 In short, while I cannot say that the interests of the State apart from the
question of juveniles and unconsenting adultsare trivial or nonexistent, I am
compelled to conclude that these interests cannot justify the substantial damage
to constitutional rights and to this Nation's judicial machinery that inevitably
results from state efforts to bar the distribution even of unprotected material to
consenting adults. NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302,
1313, 12 L.Ed.2d 325 (1964); Cantwell v. Connecticut, 310 U.S., at 304, 60
S.Ct., at 903. I would hold, therefore, that at least in the absence of distribution
to juveniles or obtrusive exposure to unconsenting adults, the First and
Fourteenth Amendments prohibit the State and Federal Governments from
attempting wholly to suppress sexually oriented materials on the basis of their
allegedly 'obscene' contents. Nothing in this approach precludes those
governments from taking action to serve what may be strong and legitimate
interests through regulation of the manner of distribution of sexually oriented
material.
VI
Two Terms ago we noted that

103 'there is developing sentiment that adults should have complete freedom to
produce, deal in, possess and consume whatever communicative materials may
appeal to them and that the law's involvement with obscenity should be limited
to those situations where children are involved or where it is necessary to
prevent imposition on unwilling recipients of whatever age. The concepts
involved are said to be so elusive and the laws so inherently unenforceable
without extravagant expenditures of time and effort by enforcement officers
and the courts that basic reassessment is not only wise but essential.' United
States v. Reidel, 402 U.S., at 357, 91 S.Ct., at 1413.
104 Nevertheless, we concluded that 'the task of restructuring the obscenity laws
lies with those who pass, repeal, and amend statutes and ordinances.' Ibid. But
the law of obscenity has been fashioned by this Courtand necessarily so
under our duty to enforce the Constitution. It is surely the duty of this Court, as
expounder of the Constitution, to provide a remedy for the present
unsatisfactory state of affairs. I do not pretend to have found a complete and
infallible answer to what Mr. Justice Harlan called 'the intractable obscenity
problem.' Interstate Circuit, Inc. v. Dallas, 390 U.S., at 704, 88 S.Ct., at 1313
(separate opinion). See also Memoirs v. Massachusetts, 383 U.S., at 456, 86
S.Ct., at 996 (dissenting opinion). Difficult questions must still be faced,
notably in the areas of distribution to juveniles and offensive exposure to
unconsenting adults. Whatever the extent of state power to regulate in those
areas,29 it should be clear that the view I espouse today would introduce a large
measure of clarity to this troubled area, would reduce the institutional pressure
on this Court and the rest of the State and Federal Judiciary, and would
guarantee fuller freedom of expression while leaving room for the protection of
legitimate governmental interests. Since the Supreme Court of Georgia
erroneously concluded that the State has power to suppress sexually oriented
material even in the absence of distribution to juveniles or exposure to
unconsenting adults, I would reverse that judgment and remand the case to that
court for further proceedings not inconsistent with this opinion.

This is a civil proceeding. Georgia Code Ann. 262101 defines a criminal


offense, but the exhibition of materials found to be 'obscene' as defined by that
statute may be enjoined in a civil proceeding under Georgia case law. 1024
Peachtree Corp. v. Slaton, 228 Ga. 102, 184 S.E.2d 144 (1971); Walter v.
Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971); Evans Theatre Corp. v. Slaton,
227 Ga. 377, 180 S.E.2d 712 (1971). See infra, at 54. Georgia Code Ann. 26
2101 reads in relevant part:
'Distributing obscene materials.

'(a) A person commits the offense of distributing obscene materials when he


sells, lends, rents, leases, gives, advertises, publishes, exhibits or otherwise
disseminates to any person any obscene material of any description, knowing
the obscene nature thereof, or who offers to do so, or who possesses such
material with the intent so to do . . ..
'(b) Material is obscene if considered as a whole, applying community
standards, its predominant appeal is to prurient interest, that is, a shameful or
morbid interest in nudity, sex or excretion, and utterly without redeeming social
value and if, in addition, it goes substantially beyond customary limits of
candor in describing or representing such matters. . . .
'(d) A person convicted of distributing obscene material shall for the first
offense be punished as for a misdemeanor, and for any subsequent offense shall
be punished by imprisonment for not less than one nor more than five years, or
by a fine not to exceed $5,000, or both.'
The constitutionality of Georgia Code Ann. 262101 was upheld against
First Amendment and due process challenges in Gable v. Jenkins, 309 F.Supp.
998 (N.D.Ga.1969), aff'd per curiam, 397 U.S. 592, 90 S.Ct. 1351, 25 L.Ed.2d
595 (1970).
2

See Georgia Code Ann. 262101, set out supra, at 51 n. 1.

In Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971), the Georgia Supreme
Court described the cases before it as follows:
'Each case was commenced as a civil action by the District Attorney of the
Superior Court of Fulton County jointly with the Solicitor of the Criminal Court
of Fulton County. In each case the plaintiffs alleged that the defendants named
therein were conducting a business of exhibiting motion picture films to
members of the public; that they were in control and possession of the
described motion picture film which they were exhibiting to the public on a fee
basis; that said film 'constitutes a flagrant violation of Ga.Code 262101 in
that the sole and dominant theme of the motion picture film . . . considered as a
whole, and applying contemporary standards, appeals to the prurient interest in
sex and nudity, and that said motion picture film is utterly and absolutely
without any redeeming social value whatsoever and transgresses beyond the
customary limits of candor in describing and discussing sexual matters." Id., at
676677, 182 S.E.2d, at 465.

This procedure would have even more merit if the exhibitor or purveyor could
also test the issue of obscenity in a similar civil action, prior to any exposure to
criminal penalty. We are not here presented with the problem of whether a

holding that materials were not obscene could be circumvented in a later


proceeding by evidence of pandering. See A Book Named 'John Cleland's
Memoirs of a Woman of Pleasure' v. Massachusetts, 383 U.S. 413, 458 n. 3, 86
S.Ct. 975, 997 n. 3, 16 L.Ed.2d 1 (1966) (Harlan, J., dissenting); Ginzburg v.
United States, 383 U.S. 463, 496, 86 S.Ct. 942, 955, 16 L.Ed.2d 31 (1966)
(Harlan, J., dissenting).
5

At the specific request of petitioners' counsel, the copies of the films produced
for the trial court were placed in the 'administrative custody' of that court
pending the outcome of this litigation.

This is not a subject that lends itself to the traditional use of expert testimony.
Such testimony is usually admitted for the purpose of explaining to lay jurors
what they otherwise could not understand. Cf. 2 J. Wigmore, Evidence 556,
559 (3d ed. 1940). No such assistance is needed by jurors in obscenity cases;
indeed the 'expert witness' practices employed in these cases have often made a
mackery out of the otherwise sound concept of expert testimony. See United
States v. Groner, 479 F.2d 577, 585586 (CA5 1973); id., at 587588
(Ainsworth, J., concurring). 'Simply stated, hard core pornography . . . can and
does speak for itself.' United States v. Wild, 422 F.2d 34, 36 (CA2 1970), cert.
denied, 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d 152 (1971). We reserve
judgment, however, on the extreme case, not presented here, where contested
materials are directed at such a bizarre deviant group that the experience of the
trier of fact would be plainly inadequate to judge whether the material appeals
to the prurient interest. See Mishkin v. New York, 383 U.S. 502, 508510, 86
S.Ct. 958, 963964, 16 L.Ed.2d 56 (1966); United States v. Klaw, 350 F.2d
155, 167168 (CA2 1965).

It is conceivable that an 'adult' theater canif it really insistsprevent the


exposure of its obscene wares to juveniles. An 'adult' bookstore, dealing in
obscene books, magazines, and pictures, cannot realistically make this claim.
The Hill-Link Minority Report of the Commission on Obscenity and
Pornography emphasizes evidence (the Abelson National Survey of Youth and
Adults) that, although most pornography may be bought by elders, 'the heavy
users and most highly exposed people to pornography are adolescent females
(among women) and adolescent and young adult males (among men).' The
Report of the Commission on Obscenity and Pornography 401 (1970). The
legitimate interest in preventing exposure of juveniles to obscene materials
cannot be fully served by simply barring juveniles from the immediate physical
premises of 'adult' book stores, when there is a flourishing 'outside business' in
these materials.

The Report of the Commission on Obscenity and Pornography 390412

(1970). For a discussion of earlier studies indicating 'a division of thought


(among behavioral scientists) on the correlation between obscenity and socially
deleterious behavior', Memoirs v. Massachusetts, supra, 383 U.S., at 451, 86
S.Ct., at 993, and references to expert opinions that obscene material may
induce crime and antisocial conduct, see id., at 451453, 86 S.Ct., at 993
995 (Clark, J., dissenting). As Mr. Justice Clark emphasized:
'While erotic stimulation caused by pornography may be legally insignificant in
itself, there are medical experts who believe that such stimulation frequently
manifests itself in criminal sexual behavior or other antisocial conduct. For
example, Dr. George W. Henry of Cornell University has expressed the opinion
that obscenity, with its exaggerated and morbid emphasis on sex, particularly
abnormal and perverted practices, and its unrealistic presentation of sexual
behavior and attitudes, may induce antisocial conduct by the average person. A
number of sociologists think that this material may have adverse effects upon
individual mental health, with potentially disruptive consequences for the
community.
'Congress and the legislatures of every State have enacted measures to restrict
the distribution of erotic and pornographic material, justify these controls by
reference to evidence that antisocial behavior may result in part from reading
obscenity.' Id., at 452453, 86 S.Ct., at 994995 (footnotes omitted).
9

See also Berns, Pornography vs. Democracy: The Case for Censorship, in 22
The Public Interest 3 (Winter 1971); was den Haag, in Censorship: For &
Against 156157 (H. Hart ed. 1971).

10

'In this and other cases in this area of the law, which are coming to us in everincreasing numbers, we are faced with the resolution of rights basic both to
individuals and to society as a whole. Specifically, we are called upon to
reconcile the right of the Nation and of the States to maintain a decent society
and, on the other hand, the right of individuals to express themselves freely in
accordance with the guarantees of the First and Fourteenth Amendments.'
Jacobellis v. Ohio, supra, at 199, 84 S.Ct., at 1684 (Warren, C.J., dissenting).

11

Mr. Justice Holmes stated in another context, that:


'(T)he proper course is to recognize that a state Legislature can do whatever it
sees fit to do unless it is restrained by some express prohibition in the
Constitution of the United States or of the State, and that Courts should be
careful not to extend such prohibitions beyond their obvious meaning by
reading into them conceptions of public policy that the particular Court may
happen to entertain.' Tyson & Brother v. Banton, 273 U.S. 418, 446, 47 S.Ct.
426, 433, 71 L.Ed. 718 (1927) (dissenting opinion joined in by Brandeis, J.).

12

'It has been well observed that such (lewd and obscene) utterances are no
essential part of any exposition of ideas, and are of such slight social value as a
step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.' Roth v. United States,
354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957), quoting
Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed.
1031 (1942) (emphasis added in Roth).

13

The protection afforded by Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22
L.Ed.2d 542 (1969), is restricted to a place, the home. In contrast, the
constitutionally protected privacy of family, marriage, motherhood, procreation,
and child rearing is not just concerned with a particular place, but with a
protected intimate relationship. Such protected privacy extends to the doctor's
office, the hospital, the hotel room, or as otherwise required to safeguard the
right to intimacy involved. Cf. Roe v. Wade, 410 U.S. 113, 152154, 93 S.Ct.
705, 726727, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479,
485486, 85 S.Ct. 1678, 16821683, 14 L.Ed.2d 510 (1965). Obviously,
there is no necessary or legitimate expectation of privacy which would extend
to marital intercourse on a street corner or a theater stage.

14

Cf. J. Mill, On Liberty 13 (1955 ed.).

15

The state statute books are replete with constitutionally unchallenged laws
against prostitution, suicide, voluntary self-mutilation, brutalizing 'bare fist'
prize fights, and duels, although these crimes may only directly involve
'consenting adults.' Statutes making bigamy a crime surely cut into an
individual's freedom to associate, but few today seriously claim such statutes
violate the First Amendment or any other constitutional provision. See Davis v.
Beason, 133 U.S. 333, 344 345, 10 S.Ct. 299, 301302, 33 L.Ed. 637 (1890).
Consider also the language of this Court in McLaughlin v. Florida, 379 U.S.
184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222 (1964), as to adultery; Southern
Surety Co. v. Oklahoma, 241 U.S. 582, 586, 36 S.Ct. 692, 694, 60 L.Ed. 1187
(1916), as to fornication; Hoke v. United States, 227 U.S. 308, 320322, 33
S.Ct. 281, 283284, 57 L.Ed. 523 (1913), and Caminetti v. United States, 242
U.S. 470, 484487, 491 492, 37 S.Ct. 192, 194195, 196197, 61 L.Ed. 442
(1917), as to 'white slavery'; Murphy v. California, 225 U.S. 623, 629, 32 S.Ct.
697, 698, 56 L.Ed. 1229 (1912), as to billard halls; and the Lottery Case, 188
U.S. 321, 355356, 23 S.Ct. 321, 326327, 47 L.Ed. 492 (1903), as to
gambling. See also the summary of state statutes prohibiting bearbaiting, cockfighting, and other brutalizing animal 'sports,' in Stevens, Fighting and Baiting,
in Animals and Their Legal Rights 112127 (Leavitt ed. 1970). As Professor
Irving Kristol has observed: 'Bearbaiting and cockfighting are prohibited only
in part out of compassion for the suffering animals; the main reason they were

abolished was because it was felt that they debased and brutalized the citizenry
who flocked to witness such spectacles.' On the Democratic Idea in America 33
(1972).
*

What we do today is rather ominous as respects librarians. The net now


designed by the Court is so finely meshed that, taken literally, it could result in
raids on libraries. Libraries, I had always assumed, were sacrosanct,
representing every part of the spectrum. If what is offensive to the most
influential person or group in a community can be purged from a library, the
library system would be destroyed.
A few States exempt librarians from laws curbing distribution of 'obscene'
literature. California's law, however, provides: 'Every person who, with
knowledge that a person is a minor, or who fails to exercise reasonable care in
ascertaining the true age of a minor, knowingly distributes to or sends or causes
to be sent to, or exhibits to, or offers to distribute or exhibit any harmful matter
to a minor, is guilty of a misdemeanor.' Calif.Penal Code 313.1.
A 'minor' is one under 18 years of age; the word 'distribute' means 'to transfer
possession'; 'matter' includes 'any book, magazine, newspaper, or other printed
or written material.' Id., 313(b), (d), (g).
'Harmful matter' is defined in 313(a) to mean 'matter, taken as a whole, the
predominant appeal of which to the average person, applying contemporary
standards, is to prurient interest, i.e., a shameful or morbid interest in nudity,
sex, or excretion; and is matter which taken as a whole goes substantially
beyond customary limits of candor in description or representation of such
matters; and is matter which taken as a whole is utterly without redeeming
social importance for minors.'

Ga.Code Ann. 262101 provides in pertinent part that


'(b) Material is obscene if considered as a whole, applying community
standards, its predominant appeal is to prurient interest, that is, a shameful or
morbid interest in nudity, sex or excretion, and utterly without redeeming social
value and if, in addition, it goes substantially beyond customary limits of
candor in describing or representing such matters. Undeveloped photographs,
molds, printing plates and the like shall be deemed obscene notwithstanding
that processing or other acts may be required to make the obscenity patent or to
disseminate it.'

Ga.Code 262101(a):
'A person commits the offense of distributing obscene materials (as described

in subsection (b), n. 1, supra) when he sells, lends, rents, leases, gives,


advertises, publishes, exhibits or otherwise disseminates to any person any
obscene material of any description, knowing the obscene nature thereof, or
who offers to do so, or who possesses such material with the intent so to do . . .'
3

The precise holding of the trial court is not free from ambiguity. After pointing
out that the films could be considered obscene, and that they still could not be
suppressed in the absence of exposure to juveniles or unconsenting adults, the
trial court concluded that '(i)t is the judgment of this court that the films, even
though they display the human body and the human personality in a most
degrading fashion, are not obscene.' It is not clear whether the trial court found
that the films were not obscene in the sense that they were protected expression
under the standards of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1
L.Ed.2d 1498 (1957), and Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414,
18 L.Ed.2d 515 (1967), or whether it used the expression 'not obscene' as a term
of art to indicate that the films could not be suppressed even though they were
not protected under the Roth-Redrup standards. In any case, the Georgia
Supreme Court viewed the trial court's opinion as holding that the films could
not be suppressed, even if they were unprotected expression, provided that they
were not exhibited to juveniles or unconsenting adults.

'As to all such problems, this Court said in Thornhill v. State of Alabama, 310
U.S. 88, 101102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940):
"The freedom of speech and of the press guaranteed by the Constitution
embraces at the least the liberty to discuss publicly and truthfully all matters of
public concern without previous restraint or fear of subsequent punishment.
The exigencies of the colonial period and the efforts to secure freedom from
oppressive administration developed a broadened conception of these liberties
as adequate to supply the public need for information and education with
respect to the significant issues of the time. . . . Freedom of discussion, if it
would fulfill its historic function in this nation, must embrace all issues about
which information is needed or appropriate to enable the members of society to
cope with the exigencies of their period.' (Emphasis added.)' Roth, 354 U.S., at
487488, 77 S.Ct., at 13101311. See also, e.g., Thomas v. Collins, 323 U.S.
516, 531, 65 S.Ct. 315, 323, 89 L.Ed. 430 (1945) ('the rights of free speech and
a free press are not confined to any field of human interest').

See, e.g., Kalven, The Metaphysics of the Law of Obscenity, 1960 Sup.Ct.Rev.
1, 1011; cf. Beauharnais v. Illinois, 34o U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919
(1952).

See, e.g., T. Emerson, The System of Freedom of Expression 487 (1970);

Kalven, supra, n. 5; Comment, More Ado About Dirty Books, 75 Yale L.J.
1364 (1966).
7

On the question of community standards see also Hoyt v. Minnesota, 399 U.S.
524, 90 S.Ct. 2241, 26 L.Ed.2d 782 (1970) (Blackmun, J., joined by Burger,
C.J., and Harlan, J., dissenting) (flexibility for state standards); Cain v.
Kentucky, 397 U.S. 319, 90 S.Ct. 1110, 25 L.Ed.2d 334 (1970) (Burger, C.J.,
dissenting) (same); Manual Enterprises v. Day, 370 U.S. 478, 488, 82 S.Ct.
1432, 1437, 8 L.Ed.2d 639 (1962) (Harlan, J., joined by Stewart, J.) (national
standards in context of federal prosecution).
No fewer than 31 cases have been disposed of in this fashion. Aside from the
three cases reversed in Redrup, they are: Keney v. New York, 388 U.S. 440, 87
S.Ct. 2091, 18 L.Ed.2d 1302 (1967); Friedman v. New York, 388 U.S. 441, 87
S.Ct. 2091, 18 L.Ed.2d 1303 (1967); Ratner v. California, 388 U.S. 442, 87
S.Ct. 2092, 18 L.Ed.2d 1304 (1967); Cobert v. New York, 388 U.S. 443, 87
S.Ct. 2092, 18 L.Ed.2d 1305 (1967); Sheperd v. New York, 388 U.S. 444, 87
S.Ct. 2093, 18 L.Ed.2d 1306 (1967); Avansino v. New York, 388 U.S. 446, 87
S.Ct. 2093, 18 L.Ed.2d 1308 (1967); Aday v. New York, 388 U.S. 447, 87
S.Ct. 2095, 18 L.Ed.2d 1309 (1967); Books, Inc. v. United States, 388 U.S.
449, 87 S.Ct. 2098, 18 L.Ed.2d 1311 (1967); A Quantity of Copies of Books v.
Kansas, 388 U.S. 452, 87 S.Ct. 2104, 18 L.Ed.2d 1314 (1967); Mazes v. Ohio,
388 U.S. 453, 87 S.Ct. 2105, 18 L.Ed.2d 1315 (1967); Schackman v.
California, 388 U.S. 454, 87 S.Ct. 2107, 18 L.Ed.2d 1316 (1967); Potomac
News Co. v. United States, 389 U.S. 47, 88 S.Ct. 233, 19 L.Ed.2d 46 (1967);
Conner v. City of Hammond, 389 U.S. 48, 88 S.Ct. 234, 19 L.Ed.2d 47 (1967);
Central Magazine Sales, Ltd. v. United States, 389 U.S. 50, 88 S.Ct. 235, 19
L.Ed.2d 49 (1967); Chance v. California, 389 U.S. 89, 88 S.Ct. 253, 19 L.Ed.2d
256 (1967); I.M. Amusement Corp. v. Ohio, 389 U.S. 573, 88 S.Ct. 690, 19
L.Ed.2d 776 (1968); Robert-Arthur Management Corp. v. Tennessee, 389 U.S.
578, 88 S.Ct. 691, 19 L.Ed.2d 777 (1968); Felton v. City of Pensacola, 390
U.S. 340, 88 S.Ct. 1098, 19 L.Ed.2d 1220 (1968); Henry v. Louisiana, 392 U.S.
655, 88 S.Ct. 2274, 20 L.Ed.2d 1343 (1968); Cain v. Kentucky, supra; Bloss v.
Dykema, 398 U.S. 278, 90 S.Ct. 1727, 26 L.Ed.2d 230 (1970); Walker v. Ohio,
398 U.S. 434, 90 S.Ct. 1884, 26 L.Ed.2d 385 (1970); Hoyt v. Minnesota, supra;
Childs v. Oregon, 401 U.S. 1006, 91 S.Ct. 1248, 28 L.Ed.2d 542 (1971); Bloss
v. Michigan, 402 U.S. 938, 91 S.Ct. 1615, 29 L.Ed.2d 106 (1971); Burgin v.
South Carolina, 404 U.S. 806, 92 S.Ct. 46, 30 L.Ed.2d 39 (1971); Hartstein v.
Missouri, 404 U.S. 988, 92 S.Ct. 531, 30 L.Ed.2d 539 (1971); Wiener v.
California, 404 U.S. 988, 92 S.Ct. 534, 30 L.Ed.2d 539 (1971).
Although I did not join the opinion of the Court in Stanley v. Georgia, 394 U.S.
557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), I am now inclined to agree that 'the

Constitution protects the right to receive information and ideas,' and that '(t)his
right to receive information and ideas, regardless of their social worth . . . is
fundamental to our free society.' Id., at 564, 89 S.Ct., at 1247. See Martin v.
City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943);
Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840
(1948); Lamont v. Postmaster General, 381 U.S. 301, 307308, 85 S.Ct. 1493,
1496 1497, 14 L.Ed.2d 398 (1965) (concurring opinion). This right is closely
tied, as Stanley recognized, to 'the right to be free, except in very limited
circumstances, from unwarranted governmental intrusions into one's privacy.'
394 U.S., at 564, 89 S.Ct., at 1247. See Griswold v.
Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Olmstead v.
United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928)
(Brandeis, J., dissenting). It is similarly related to 'the right of the individual,
married or single, to be free from unwarranted governmental intrusion into
matters so fundamentally affecting a person as the decision whether to bear or
beget a child' (italics omitted), Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct.
1029, 1038, 31 L.Ed.2d 349 (1972), and the right to exercise 'automonous
control over the development and expression of one's intellect, interests, tastes,
and personality.' (Italics omitted.) Doe v. Bolton, 410 U.S. 179, 211, 93 S.Ct.
739, 757, 35 L.Ed.2d 201 (1973) (Douglas, J., concurring). It seems to me that
the recognition of these intertwining rights calls in question the validity of the
two-level approach recognized in Roth. After all, if a person has the right to
receive information without regard to its social worththat is, without regard
to its obscenitythen it would seem to follow that a State could not
constitutionally punish one who undertakes to provide this information to a
willing, adult recipient. See Eisenstadt v. Baird, supra, 405 U.S., at 443446,
92 S.Ct., at 10331035. In any event, I need not rely on this line of analysis or
explore all of its possible ramifications, for there is available a narrower basis
on which to rest this decision. Whether or not a class of 'obscene' and thus
entirely unprotected speech does exist, I am forced to conclude that the class is
incapable of definition with sufficient clarity to withstand attack on vagueness
grounds. Accordingly, it is on principles of the void-for-vagueness doctrine that
this opinion exclusively relies.
10

In this regard, the problems of vagueness and overbreadth are, plainly, closely
intertwined. See NAACP v. Button, 371 U.S. 415, 432433, 83 S.Ct. 328, 337
338, 9 L.Ed.2d 405 (1963); Note, The First Amendment Overbreadth
Doctrine, 83 Harv.L.Rev. 844, 845 (1970). Cf. infra, at 9394.

11

See also Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460
(1958); cf. Barenblatt v. United States, 360 U.S. 109, 137138, 79 S.Ct. 1081,
10981099, 3 L.Ed.2d 1115 (1959) (Black, J., dissenting):

'This Court . . . has emphasized that the 'vice of vagueness' is especially


pernicious where legislative power over an area involving speech, press,
petition and assembly is involved. . . . For a statute broad enough to support
infringement of speech, writings, thoughts and public assemblies, against the
unequivocal command of the First Amendment necessarily leaves all persons to
guess just what the law really means to cover, and fear of a wrong guess
inevitably leads people to forego the very rights the Constitution sought to
protect above all others. Vagueness becomes even more intolerable in this area
if one accepts, as the Court today does, a balancing test to decide if First
Amendment rights shall be protected. It is difficult at best to make a man guess
at the penalty of imprisonmentwhether a court will consider the State's
need for certain information superior to society's interest in unfettered freedom.
It is unconscionable to make him choose between the right to keep silent and
the need to speak when the statute supposedly establishing the 'state's interest'
is too vague to give him guidance.' (Citations omitted.)
12

Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 885


886 and n. 158 (1970) ('Thus in the area of obscenity the overbreadth doctrine
operates interstitially, when no line of privilege is apposite or yet to be found, to
control the impact of schemes designed to curb distribution of unprotected
material').

13

While the Court's modification of the Memoirs test is small, it should still
prove sufficient to invalidate virtually every state law relating to the
suppression of obscenity. For, under the Court's restatement, a statute must
specifically enumerate certain forms of sexual conduct, the depiction of which
is to be prohibited. It seems highly doubtful to me that state courts will be able
to construe state statutes so as to incorporate a carefully itemized list of various
forms of sexual conduct, and thus to bring them into conformity with the
Court's requirements. Cf. Blount v. Rizzi, 400 U.S. 410, 419, 91 S.Ct. 423, 429,
27 L.Ed.2d 498 (1971). The statutes of at least one State should, however,
escape the wholesale invalidation. Oregon has recently revised its statute to
prohibit only the distribution of obscene materials to juveniles or unconsenting
adults. The enactment of this principle is, of course, a choice constitutionally
open to every State, even under the Court's decision. See Oregon Laws 1971, c.
743, Art. 29, 255262.

14

'All ideas having even the slightest redeeming social importanceunorthodox


ideas, controversial ideas, even ideas hateful to the prevailing climate of
opinionhave the full protection of the guaranties, unless excludable because
they encroach upon the limited area of more important interests. But implicit in
the history of the First Amendment is the rejection of obscenity as utterly
without redeeming social importance.' Roth v. United States, supra, 354 U.S., at

484, 77 S.Ct., at 1309.


15

Miller v. California, 413 U.S., at 22, 93 S.Ct., at 2613.

16

Huffman v. United States, 152 U.S.App.D.C. 238, 470 F.2d 386 (1971). The
test apparently requires an effort to distinguish between 'singles' and 'duals,'
between 'erect penises' and 'semi-erect penises,' and between 'ongoing sexual
activity' and 'imminent sexual activity.'

17

Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109


U.Pa.L.Rev. 67, 81 (1960).

18

Compare Ginsberg v. New York, 390 U.S. 629, 672, 88 S.Ct. 1274, 1297, 20
L.Ed.2d 195 (1968) (Fortas, J., dissenting); Jacobellis v. Ohio, 378 U.S. 184,
187190, 84 S.Ct. 1676, 1677 1679, 12 L.Ed.2d 793 (1964) (Brennan, J.,
joined by Goldberg, J.); Manual Enterprises v. Day, 370 U.S., at 488, 82 S.Ct.,
at 1437 (Harlan, J., joined by Stewart, J.); and Kingsley Pictures Corp. v.
Regents, 360 U.S. 684, 696697, 79 S.Ct. 1362, 13691370, 3 L.Ed.2d 1512
(1959) (Frankfurter, J., concurring); id., at 708, 79 S.Ct., at 1375 (Harlan, J.,
joined by Frankfurter, J., and Whittaker, J., concurring), with Jacobellis v.
Ohio, supra, 378 U.S., at 202203, 84 S.Ct., at 16851686 (Warren, C.J.,
joined by Clark, J., dissenting); Roth v. United States, 354 U.S., at 492 n. 30,
77 S.Ct., at 1313; and Kingsley Books, Inc. v. Brown, 354 U.S. 436, 448, 77
S.Ct. 1325, 1331, 1 L.Ed.2d 1469 (1957) (Brennan, J., dissenting). See also
Walker v. Ohio, 398 U.S. 434, 90 S.Ct. 1884, 26 L.Ed.2d 385 (1970) (Burger,
C.J., dissenting).

19

Mr. Justice Harlan, it bears noting, considered this requirement critical for
review of not only federal but state convictions, despite his view that the States
were accorded more latitude than the Federal Government in defining
obscenity. See, e.g., Roth, supra, 354 U.S., at 502503, 77 S.Ct., at 1318
1319 (separate opinion).

20

See generally Culombe v. Connecticut, 367 U.S. 568, 603 606, 81 S.Ct. 1860,
18791881, 6 L.Ed.2d 1037 (1961) (opinion of Frankfurter, J.); cf. Crowell v.
Benson, 285 U.S. 22, 5465, 52 S.Ct. 285, 293298, 76 L.Ed. 598 (1932);
Ng Fung Ho v. White, 259 U.S. 276, 284285, 42 S.Ct. 492, 495, 66 L.Ed.
938 (1922).

21

See n. 9, supra.

22

Cf. United States v. O'Brien, 391 U.S. 367, 376377, 88 S.Ct. 1673, 1678
1679, 20 L.Ed.2d 672 (1968):

'This Court has held that when 'speech' and 'nonspeech' elements are combined
in the same course of conduct, a sufficiently important governmental interest in
regulating the nonspeech element can justify incidental limitations on First
Amendment freedoms. To characterize the quality of the governmental interest
which must appear, the Court has employed a variety of descriptive terms:
compelling; substantial; subordinating; paramount; cogent; strong. Whatever
imprecision inheres in these terms, we think it clear that a government
regulation is sufficiently justified if it is within the constitutional power of the
Government; if it furthers an important or substantial governmental interest; if
the governmental interest is unrelated to the suppression of free expression; and
if the incidental restriction on alleged First Amendment freedoms is no greater
than is essential to the furtherance of that interest.' (Footnotes omitted.)
See also Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460
(1958).
23

See also Rabe v. Washington, 405 U.S. 313, 317, 92 S.Ct. 993, 995, 31 L.Ed.2d
258 (1972) (concurring opinion); United States v. Reidel, 402 U.S. 351, 360
362, 91 S.Ct. 1410, 1415, 28 L.Ed.2d 813 (1971) (separate opinion); Ginsberg
v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); id., at 674
675, 88 S.Ct., at 1298 (dissenting opinion); Redmond v. United States, 384
U.S. 264, 265, 86 S.Ct. 1415, 1416, 16 L.Ed.2d 521 (1966); Ginzburg v. United
States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966); id., at 498 n. 1, 86
S.Ct., at 956 (dissenting opinion); Memoirs v. Massachusetts, 383 U.S. 413,
421 n. 8, 86 S.Ct. 975, 978, 16 L.Ed.2d 1 (1966); Jacobellis v. Ohio, 378 U.S.,
at 195, 84 S.Ct., at 1682 (1964) (opinion of Brennan, J., joined by Goldberg,
J.); id., at 201, 84 S.Ct., at 1685 (dissenting opinion). See also Report of the
Commission on Obscenity and Pornography 300301 (1970) (focus of early
obscenity laws on protection of youth).

24

T. Emerson, The System of Freedom of Expression 496 (1970).

25

See ibid.

26

Indeed, since Stanley was decided, the President's Commission on Obscenity


and Pornography has concluded:
'In sum, empirical research designed to clarify the question has found no
evidence to date that exposure to explicit sexual materials plays a significant
role in the causation of delinquent or criminal behavior among youth or adults.
The Commission cannot conclude that exposure to erotic materials is a factor in
the causation of sex crime or sex delinquency.' Report of the Commission on
Obscenity and Pornography 27 (1970) (footnote omitted).

To the contrary, the Commission found that '(o)n the positive side, explicit
sexual materials are sought as a source of entertainment and information by
substantial numbers of American adults. At times, these materials also appear
to serve to increase and facilitate constructive communication about sexual
matters within marriage.' Id., at 53.
27

See Henkin, Morals and the Constitution; The Sin of Obscenity, 63 Col.L.Rev.
391, 395 (1963).

28

'(I)n our system, undifferentiated fear or apprehension of disturbance is not


enough to overcome the right to freedom of expression. Any departure from
absolute regimentation may cause trouble. Any variation from the majority's
opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on
the campus, that deviates from the views of another person may start an
argument or cause a disturbance. But our Constitution says we must take this
risk, Terminiello v. Chicago, 337 U.S. 1 (69 S.Ct. 894), 93 L.Ed. 1131 (1949);
and our history says that it is this sort of hazardous freedomthis kind of
opennessthat is the basis of our national strength and of the independence
and vigor of Americans who grow up and live in this relatively permissive,
often disputations, society.' Tinker v. Des Moines Independent Community
School District, 393 U.S. 503, 508509, 89 S.Ct. 733, 737738, 21 L.Ed.2d
731 (1969). See also Cohen v. California, 403 U.S. 15, 23, 91 S.Ct. 1780, 1787,
29 L.Ed.2d 284 (1971).

29

The Court erroneously states, Miller v. California, 413 U.S., at 27, 93 S.Ct., at
2616, that the author of this opinion 'indicates that suppression of unprotected
obscene material is permissible to avoid exposure to unconsenting adults . . .
and to juveniles . . ..' I defer expression of my views as to the scope of state
power in these areas until cases squarely presenting these questions are before
the Court. See n. 9, supra; Miller v. California, supra (dissenting opinion).